NEW ISSUES IN REFUGEE RESEARCH

Research Paper No. 229

Human trafficking in Mexico and neighbouring countries: a review of protection approaches

Lara Talsma

Advocacy Officer (Henigson Fellow) Amnesty International Mexico

E-mail: Lc_talsma@hotmail.com

January 2012

Policy Development and Evaluation Service

Policy Development and Evaluation Service United Nations High Commissioner for Refugees P.O. Box 2500, 1211 Geneva 2 Switzerland E-mail: hqpd00@unhcr.org Web Site: www.unhcr.org

These papers provide a means for UNHCR staff, consultants, interns and associates, as well as external researchers, to publish the preliminary results of their research on refugee-related issues. The papers do not represent the official views of UNHCR. They are also available online under ‗publications‘ at <www.unhcr.org>. ISSN 1020-7473

Introduction In the last two decades, both the trafficking of human beings and the attention given to this crime have increased tremendously. Human trafficking is now considered the second largest criminal enterprise in the world, second only to drugs trafficking. Concerns about this epidemic growth have led to an array of international, regional and national responses in the last ten years. Several international and regional treaties have been adopted, national legislation has been put in place to implement these international agreements and practical and operational mechanisms have been created to give effect to legislation. Under international law, human trafficking is both a human rights violation and a crime. Many anti-trafficking strategies, whether at the international or national level, have adopted methods that include preventing the crime of trafficking, protecting the trafficking victim and prosecuting the trafficker. However, in practice, most strategies have focused on combating trafficking through law enforcement, through prosecution of the offender and through the crackdown of criminal networks that engage in trafficking. This paper concentrates on the struggle against human trafficking from a migration and asylum protection perspective. The overwhelming majority of trafficking victims, aside from being female, are migrants searching for an economically better, but also safer future. 1 Migrants and asylum seekers are considered to be most vulnerable to falling victim to human traffickers and the socio-demographic characteristics of vulnerable migrants and asylum seekers show a strong resemblance to the people most vulnerable to becoming victims of human trafficking. The connection between migration and trafficking is strikingly present in Mexico and the surrounding countries. The way through Mexico is one of the most used mixed migration routes in the world, with the United States-Mexico border being the most crossed border in the world. Many irregular migrants pass through Mexico desperate to get to the United States and many of them make use of smugglers to help them get there. These smuggling agreements have been known to evolve into a trafficking situation. In addition, migrants in Mexico run a great risk of being kidnapped and consequently being trafficked. In other situations, (irregular) migrants travel for jobs that turn out to be exploitative and/or of a different nature than what was first agreed. Migration in Mexico has thus become a highly lucrative enterprise for smugglers, traffickers and kidnappers of migrants. In the last decade the human trafficking business in this region has seen a disturbing growth and it continues to be a growing problem.2 The migrants and asylum seekers who travel through Mexico and who are prone to being trafficked have nationalities from all over the world, but the vast majority come from Central America, particularly from the countries El Salvador, Guatemala, Honduras and Nicaragua.

1

Anti-Slavery International, The migration-trafficking nexus: combating trafficking through the protection of migrants’ human rights, The Printed Word UK: 2003, available at: http://www.antislavery.org/english/resources/reports/download_antislavery_publications/trafficking_reports.asp x [last accessed: 20 December 2011] (hereinafter: Anti-Slavery International 2003), p. 1. 2 United States Congressional Research Service, Trafficking in Persons in Latin America and the Caribbean, RL33200, available at: http://www.unhcr.org/refworld/docid/4e96ba0f2.html [last accessed: 18 December 2011](hereinafter: Congressional Research Service 2011), p. 4.

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In my analysis of anti-trafficking strategies from a migration and asylum protection perspective, I focus on the problem of human trafficking in Mexico, as a country of origin, destination and transit. This requires an extended view to the surrounding countries, particularly the United States and the Central-American countries El Salvador, Guatemala, Honduras and Nicaragua. For this paper, I neglect trafficking situations and victims that extend beyond these countries. In most studies and policy approaches a strict distinction is made between smuggling of migrants and trafficking in persons. In this paper, in contrast, I concentrate on the relationship between the crime of trafficking, smuggling of migrants, mixed migration flows and the crimes that migrants encounter while trying to make their way to, from and through Mexico. The international definition of trafficking in persons In 2000 the United Nations General Assembly reached agreement on a universal instrument that aims to ―prevent and combat trafficking‖, ―assist victims of such trafficking‖ and to promote international cooperation towards those ends‖.3 This Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children (hereinafter: Trafficking Protocol) supplements the United Nations Convention against Transnational Organized Crime. It entered into force on 25 December 20034 and is currently ratified by 147 states.5 The Trafficking Protocol therewith provides the first internationally accepted definition of human trafficking.6 This definition, as laid down in Article 3 of the Trafficking Protocol, reads: For the purposes of this Protocol: (a)―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; (b)The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a)of this article shall be irrelevant where any of the means set forth in subparagraph (a)have been used;

3

Article 2 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, General Assembly Resolution A/RES/55/25, 15 November 2000, (hereinafter: Trafficking Protocol). 4 http://www.unodc.org/unodc/en/treaties/CTOC/index.html[last accessed: 20 December 2011]. 5 http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18&lang=en [last accessed: 3 December 2011). 6 UN High Commissioner for Refugees, International protection for trafficked persons and those who fear being trafficked, 20 December 2007, ISSN 1020-7473, available at: http://www.unhcr.org/refworld/docid/4c247bc32.html [last accessed: 20 December 2011] (hereinafter: UNHCR 2007), p. 6.

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(c)The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ―trafficking in persons‖ even if this does not involve any of the means set forth in subparagraph (a)of this article; (d)―Child‖ shall mean any person under eighteen years of age. The definition consists of several components that represent an interlinked chain of events and that should all be met in order to constitute trafficking.7 Firstly, it defines the act or action that composes trafficking, being recruitment, transportation, transfer, harbouring or receipt of persons. These acts might be carried out by the same or by different persons. The recruiter can be known or unknown to the trafficked victim. Sometimes, family members or boyfriends initiate the trafficking agreement and many other varieties are imaginable. Secondly, the Trafficking Protocol lists the means by which trafficking is executed. These means always include some form of coercion, deceit, or force. Typically, violence or the threat of violence will be used against the victim or against family members. Sometimes fake promises of good jobs are made. In other situations, parents or relatives are paid to hand over their child or a family member. Thirdly, the definition describes the purpose or end result of the act of trafficking: exploitation. The Trafficking Protocol clarifies that such exploitation minimally includes prostitution, other sexual exploitation (e.g. child pornography or sexual slavery), forced labour or service (e.g. forced labour in agriculture, mining, or domestic services and debt bondage), slavery or practices similar to slavery (e.g. child camel jockeys), servitude, and the removal of organs.8It should be born in mind that initial consented agreements on work can still become trafficking when the nature of the job is different from what was agreed and when it involves an exploitative situation. For example, domestic servants can become subject to sexual services and abuse. Although the definition of the Trafficking Protocol has been widely endorsed, the national implementation of this definition may diverge. Countries sometimes fail to include certain elements or add ones as deemed appropriate. For example, the United States definition does not include the purpose of exploitation for the removal of organs.9 And Mexico has added that it is also considered trafficking if none of the coercive means are applied, but when it involves a person who does not have the capacity to understand or resist the events of trafficking.10

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Alexis A. Aronowitz, ‗Understanding Trafficking in Human Beings. A Human Rights, Public Health, and Criminal Justice Issues‘, in: Mangay Natarajan (ed.), International Crime and Justice, Cambridge University Press: 2011 (hereinafter: Aronowitz 2011), p. 119. 8See also UNHCR 2007, supra note 6, p. 7;UN High Commissioner for Refugees, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked, 7 April 2006, HCR/GIP/06/07, available at: http://www.unhcr.org/refworld/docid/443679fa4.html [last accessed 20 December 2011] (hereinafter: UNHCR 2006), p. 4. 9 Congressional Research Service 2011, supra note 2, p. 1. 10 Article 5 Ley Para Prevenir y Sancionar la Trata de Personas.

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Trafficking in persons: scale and nature of the problem It is very difficult to find accurate statistics on the scale of human trafficking. Not only is it in the traffickers‘ interest to work as clandestinely as possible, but also many victims are too afraid or too ashamed to report to or to seek help from the authorities. This fear is stimulated by the traffickers who remove migration and identity documents from victims and threaten that any contact with the authorities will immediately lead to their deportation. In addition, in many countries public officials lack the knowledge of or apply a different definition of human trafficking and as a consequence fail to recognise a victim. Finally, the use of varying methodology or the absence of precise record keeping undermines the accurate collection of data.11 The statistics that are available are based on the actual known number of victims, or on estimates. These numbers vary greatly, ranging from four million to twenty-seven million.12 However, even from the minimum figures it is evident that the magnitude of the trafficking business is staggering. The International Labour Organisation (ILO) has (conservatively) estimated that a total of 2.4 million people worldwide have been trafficked into forced labour.13 Another ILO figure estimates that at any point in time between 275,068 and 508,931 people are being trafficked, whether cross-border or nationally.14 The number of trafficked people as estimated by the United States government lies between 800,000-900,000 annually.15 Human trafficking is tremendously attractive for offenders, as it is a highly lucrative, but low-risk business. Despite a focus on prosecution efforts, chances of being caught are slim and in most countries the crime of trafficking is rarely prosecuted. It has been estimated that the annual profits made of trafficking range from 5-7 billion to 32 billion United States dollars.16 The International Organization for Migration (IOM) has calculated that in Latin America alone, sex trafficking ―generates some 16 billion United States dollars worth of business annually‖.17 Trafficking and smuggling In the international approach to prevent and combat trafficking, a clear distinction is drawn between trafficking and smuggling of human beings. By the same resolution through which the Trafficking Protocol was created, the General Assembly adopted a second supplementary Protocol to the Convention Against Transnational Organized Crime: the Protocol against the

11

Jo Goodey, ‗Human Trafficking‘, in: Fiona Brookman et al. (ed.), Handbook on Crime, Cullompton: 2010 (hereinafter: Goodey 2010), p. 699; Aronowitz 2011, supra note 8, p. 120. 12 Aronowitz 2011,supra note 7, p. 120. 13 International Labour Organizations (ILO), ILO Action against trafficking in human beings, 12 February 2008, available at: http://www.ilo.org/sapfl/Informationresources/ILOPublications/WCMS_090356/lang--en/index.htm [last accessed: 20 December 2011] (hereinafter: ILO 2008), p. 3. 14 Goodey 2010,supra note 11, p. 700. 15 Anti-Slavery International 2003, supra note 1, § 2; Congressional Research Service 2011, supra note 2, p. 3. 16 Aronowitz 2011,supra note 7, p. 118; Anti-Slavery International 2003, supra note 1,§ 2; ILO 2008, supra note 13, p. 1. 17 Congressional Research Service 2011, supra note 2, p. 4.

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Smuggling of Migrants, by Land, Sea, and Air.18 This Protocol entered into force on 28 January 2004 and currently counts 129 ratifications.19 It defines smuggling as ―the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.‖20 There are some important differences between trafficking and smuggling. Essential to trafficking is that the act results in a situation of exploitation. Although the process of smuggling can be exploitative in nature, the purpose of it is to bring persons across a border, after which the smuggled person in principle is free to continue its own way. Smuggling thus always involves crossing international borders, while trafficking can also occur within a country. In addition, the trafficking definition recognizes that the consent of a trafficked victim is irrelevant when the coercive means as set out in that definition are used. In the case of children, such consent is always considered to be absent, regardless of the means used. Trafficked persons are therefore always considered victims. Smuggled persons, however, knowingly and intently seek the assistance of smugglers to help them cross the border. Although the process of smuggling may be dangerous, degrading, and deceitful, it started out with the consent of the migrant.21 The Smuggling Protocol, therefore, considers smuggled migrants as complicit in the crime of smuggling yet, they are not considered liable for criminal conduct.22 Given these differences, many organisations promote policy approaches that clearly distinguish between trafficking and smuggling. A diffusion of the two is often considered to be detrimental to an effective approach. For instance, the ILO asserts that ―laws and administrative regulations may leave enforcement authorities with uncertainty as to where to draw the line between trafficking, smuggling, sub-standard working conditions and forced or illegal child labour‖, which the ILO contends is counter-productive to effective lawenforcement.23 The ILO is also of the opinion that ―(d)istinction in policies combating trafficking from those addressing smuggling may be necessary to assure consistent defence of migrant workers while seeking to suppress organized crime.‖24 Nevertheless, the ILO recognises that such a distinction can be arbitrary and that ―what started as a smuggling situation can change into a trafficking one.‖25 For example, the migrant who needed to pay a certain amount to be smuggled across a border may find himself
18Protocol

against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (2000) GA Resolution A/RES/55/25 (15 November 2000) (hereinafter: Smuggling Protocol). 19 http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-b&chapter=18&lang=en [last accessed: 20 December 2011]. 20 Article 3(a) Smuggling Protocol. 21 See UNHCR 2006, supra note 8, p. 3; UNHCR 2007, supra note 6, p. 5; Aronowitz 2011, supra note 7, p. 119. 22 Congressional Research Service 2011,supra note 2, p. 2. 23 ILO 2008, supra note 13, p. 11; International Labour Organization (ILO), Perspectives on Labour Migration. Getting at the Roots: Stopping Exploitation of Migrant Workers by Organized Crime, 2003, available at: http://www.ilo.org/public/english/protection/migrant/info/perspectives.htm [last accessed: 20 December 2011] (hereinafter: ILO Perspectives on Labour Migration 2003), p. 6. 24 ILO Perspectives on Labour Migration 2003, supra note 23, p. 7. 25 Id.

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in a situation of debt bondage, in which he is forced to protracted labour in order to pay of his (supposed) debt. In fact, smuggled migrants are identified as particularly vulnerable to falling victim to human trafficking.26 The Mexican situation Most literature on trafficking in persons covers the situation in Asia and Europe. Relatively little information is available about trafficking in Mexico and Central America. The majority of the literature that addresses such topics as migration, smuggling and trafficking in this region, is dedicated to the problems around the United States-Mexico border and the illegal crossing and smuggling of migrants into the United States. The situation of migrants in Mexico has only more recently become topic of attention. In order to understand the complexity of the mixed migration flows and its connection to smuggling and trafficking, I first provide a general overview of the most pressing migration issues in Mexico and the larger region. Mixed migration flows from, to and through Mexico With an estimated 10.1 million Mexican nationals living abroad, Mexico is among the nations with the highest emigrant rate.27 Many of them live in the United States. In 2010, the United States counted 11.6 million Mexican immigrants, therewith making up an immigrant rate of one in every three immigrants. Annually, hundreds of thousands of Mexican nationals legally migrate to the United States.28 Many more Mexicans attempt to irregularly reach the United States and many of them never make it as they die on their way, are stopped at the border, or are deported. Next to economic migrants, the United States receives a significant amount of Mexican asylum seekers. In the first six months of 2011, the United States saw a considerable increase in the asylum applications of Mexican nationals, reaching the highest number of Mexican applicants in almost a decade and counting for the second largest group after Chinese applicants.29 Worldwide, as at January 2011, 6,816 asylum seekers from Mexico have been recognized as refugees.30

26 27

UNHCR 2006, supra note 8, p. 3; UNHCR 2007, supra note 6, p. 5. Other top 3 countries are India and China:Comisión Nacional de Derechos Humanos (CNDH), Informe Especial sobre los casos de secuestro en contra de migrantes, México D.F., 22 febrero 2011, available at: http://www.cndh.org.mx/node/35 [last accessed: 20 December 2011] (hereinafter: CNDH 2011), p. 5; Comisión Interamericana de Derechos Humanos de la Organización de Estados Americanos, Anexo al Comunicado de Prensa 82/11, Observaciones Preliminares de la Relatoría sobre los Derechos de los Migrantes de la CIDH a México, 2 agosto 2011, available at: www.cidh.org/pdf%20files/ANEXO.82-11.pdf [last accessed: 19 December 2011] (hereinafter: CIDH 2011), p. 3; United Nations General Assembly (UNGA) Human Rights Council, Report of the Special Rapporteur on the human rights of migrants Jorge Bustamante, Mission to Mexico 9-15 March 2008, A/HRC/11/7/Add.2, 24 March 2009, (hereinafter: UNGA Special Rapporteur Migrants Bustamante 2008), p. 3. 28 UNGA Special Rapporteur Migrants Bustamante 2008, supra note 27, p. 8. 29 UN High Commissioner for Refugees (UNHCR), Asylum levels and trends in industrialized countries, First half of 2011, http://www.unhcr.org/4e9beaa19.html [last accessed: 20 December 2011] (hereinafter: UNHCR Asylum level and trends 2011). 30 http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e492706&submit=GO# [last accessed: 20 December 2011].

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In its turn, Mexico also receives numerous migrants each year. These migrants mainly come from the Central American countries Guatemala, Honduras, El Salvador and Nicaragua, but also include migrants from the Caribbean, South-America, and from other continents. The majority of these migrants seek to fulfil the jobs that Mexicans migrants heading north have left vacant, mainly in the agricultural industry and in the domestic sphere. It is estimated that in the Southern state of Chiapas alone, there are 250,000-300,000 migrant workers employed in agriculture, such as in the coffee plantations.31 According to UNHCR there has been an increase of asylum applications in the United States, Mexico and Canada from Central American applicants, as a result of the increase in violence in Central American countries.32 There is very little data on the number and profile of asylum seekers and (recognized) refugees in Mexico and on the reasons for denial or recognition of asylum claims. Some information is provided by UNHCR and by the COMAR (the Mexican Commission for Refugee Aid).33 UNHCR statistics on Mexico show that, as at January 2011, there were 1,395 recognized refugees in Mexico, while some 172 asylum seekers were awaiting the result of their procedure.34 Numbers provided by the COMAR demonstrate that in the timeframe 20022010, Mexico received 4,251 applications for asylum, of which 845 were recognized as refugees. The applicant and recognition rates include a large percentage of Central Americans.35 Mexico‘s almost 1100-mile southern border with Guatemala and Belize is extremely porous. There are relatively few regular border control posts and there is very little surveillance between those posts. The natural obstacles, such as rivers and mountains do not stop migrants from entering Mexican territory; in fact it provides them clandestine routes. As a result, it is almost impossible to obtain trustworthy statistics on the actual amount of irregular migrants and (in-transit) asylum seekers entering Mexico. However, several numbers indicate that the annual immigration flow into Mexico must be significant. One estimated minimum given by the Mexican government is 140,000 undocumented migrants annually, while civil society organizations and the IOM reach a number of 400,000.36 It is believed that the majority of these undocumented migrants are in transit on their way to the United States.
31 32

UNGA Special Rapporteur Migrants Bustamante 2008,supra note 23,p. 11. UN High Commissioner for Refugees (UNHCR), Update on UNHCR‘s operations in the Americas 2011 for the Sixty-second Session of the Executive Committee of the High Commissioner‘s Programme Geneva 3-7 October 2011, (29 September 2011), available at: http://www.unhcr.org/4e8582d49.html [last accessed: 20 December 2011] (hereinafter: UNHCR Update Americas 2011), p. 2; UN High Commissioner for Refugees (UNHCR), Guidance Note on Refugee Claims Relating to Victims of Organized Gangs, 31 March 2010, available at: http://www.unhcr.org/refworld/docid/4bb21fa02.html [accessed 20 December 2011] (hereinafter: UNHCR Guidance Note on Gangs 2011), p. 1. 33 The COMAR is the agency that assesses asylum claims and grants or denies asylum claims. 34 http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e492706&submit=GO# [last accessed: 20 December 2011]. 35 The asylum seekers come from about fifty different nationalities, among which many Central Americans but also nationalities from other Latin American countries and from other continents. Given that among these nationalities are high numbers of asylum seekers from countries in major conflict, such as Colombia, Sri Lanka, Somalia and Afghanistan, the amount of applications and approvals is remarkably low. Between 2002-2010 on average less than 20% of the asylum applications were approved; http://www.comar.gob.mx/ [last accessed: 20 December 2011]. 36 CIDH 2011,supra note 27, p. 3.

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Finally, estimates show that around 3.5 million Mexicans have migrated internally. Many of these internal migrants are from indigenous communities.37 A large part of the internal movement is for economic reasons; people circulating through Mexico to find work. However, many also try to escape the violence that affects their hometowns. According to UNHCR, in 2010 there were about 120,000 internally displaced persons who fled violence instigated by either cartels, or by inter-sectarian conflict between indigenous communities.38 The federal government of Mexico does, however, not recognise the existence of internally displaced people in Mexico. Push and pull factors Thus, the overwhelming majority of the irregular migrants passing through Mexico are from Central American countries. Generally speaking, their reasons for leaving is not that much different from other migrants in the world; they face poverty, violence, lack of prospect of a better future. However, Central American countries and Mexico are particularly plagued by the violence of gangs, drug cartels and the conflict between governments and these criminal groups. Since more or less the early 1990s, Central American countries have seen an explosive increase in gang membership, gang influence, and gang-related violence. These Central American gangs (maras) are strongly linked to the gang culture of Los Angeles in the United States, which started to develop in the 1980s. At the end of the civil wars that held the Central American region in their grip in the 1980s, the governmental void provided fertile ground for gangs to develop their networks. As a result of the wars, many weapons were readily available, former soldiers had difficulty reintegrating in society, there was a complete lack of a judicial and societal system, people had grown accustomed to high levels of violence and enormous poverty prevailed. At the same time, the United States government started to deport Central American gang members residing in the United States. With their need for a social network in a country mostly unfamiliar to them and with their main skills being related to crime, the deported gang members sought these gang contacts and fuelled the growth of the gang phenomenon in Central America.39 Over the years, the United States has continued to deport gang members to Mexico and Central America. Supposedly, even today ―70 per cent of gang members who are picked up by the police are deported.‖40 In 2005, that amounted to a number of 340,000 ex-convicts being deported to Mexico.41 Often, gang members are deported when they are found with no documentation, but when there is little evidence of an actual crime, except for being gangaffiliated.42 However, other deportees have been convicted and have finished a sentence. Gang members are deported on weekly private flights from the United States to home countries.43 Problematic is that these deported gang members re-establish contacts with gang networks in their home countries and on their (unavoidable) attempt of return to the United States,
37 38

UNGA Special Rapporteur Migrants Bustamante 2008, supra note 23, p. 9; CIDH 2011, supra note 27, p. 3. http://www.unhcr.org/refworld/country,,,,MEX,4562d94e2,4d932e1bc,0.html[last accessed: 20 December 2011].

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therewith reinforcing the gang networks from Central America all the way through Mexico and back to the United States.44 The existence of these gangs threatens the lives and safety of Central Americans in various ways. First of all, gangs forcibly recruit new gang members, especially young men. However, women and girls are also prone to be recruited and used for sexual favours for the male members, for criminal activities, for prostitution, or for trafficking. Recruits who refuse to become members or former members, who desert the gangs, run the risk of repercussions against themselves or their families. Secondly, business owners are forced to pay a ‗renta‘ for running their business in ‗mara‘ territory. Refusal to do so will be answered with violent actions against the business owner or his or her family. Other persons running great risks of reprisals, threats, and violence are witnesses of crimes committed by gangs, law enforcement agents, who participate in the fight against gangs and have been identified by gang members, and NGO-workers, human rights defenders and any other group or activist that shows criticism towards the gangs and/or the governmental tactics to crackdown on these gangs.45Not surprisingly, this wave of violence causes people to go on the move in search of a better and safer environment. In Mexico, in addition to gangs, violent groups also come in the form of criminal organized networks and drug cartels. General violence comes from cartels fighting amongst themselves, but also from fighting between governments and criminal networks. In addition, these criminal groups target marginalized parts of the population, such as migrants, indigenous, or people living in their territory, for purposes of extortions, to remove them from territory they need, to use them for criminal activity, and to recruit them. Aside from the many economic and safety reasons that cause Central Americans and Mexicans to leave their homes, there are very strong pull factors that draw them towards the United States. The key factor is the enormous demand for low-skilled or cheap labour in the United States. Consequently, migrant workers will relatively easy find a job and they tend to get paid much more than what they would be paid at home. Dangers on the road The journey of migrants from the south to the north of Mexico is exceptionally dangerous, possibly the world‘s most dangerous route that migrants take.46 Either because of a lack of resources or in an attempt to avoid controls, most migrants jump on the freight train just north
39

UN High Commissioner for Refugees, Living in a World of Violence: An Introduction to the Gang Phenomenon, July 2011, PPLA/2011/07, available at: http://www.unhcr.org/refworld/docid/4e3260a32.html [accessed 19 December 2011] (hereinafter: UNHCR July 2011). 40 UNGA Special Rapporteur Migrants Bustamante 2008, supra note 23, p. 10. 41 Salvador A. Cicero-Domínguez, ‗Assessing the U.S.-Mexico Fight Against Human Trafficking and Smuggling: Unintended Results of U.S. Immigration Policy‘, 4 Nw. U. J. Int'l Hum. Rts. 303 (2005), available at:http://www.law.northwestern.edu/journals/jihr/v4/n2/2 (hereinafter: Cicero-Domínguez 2005), par. 53-58. 42 UNGA Special Rapporteur Migrants Bustamante 2008, supra note 23, p. 10. 43 Id., p. 10-11. 44 UNGA Special Rapporteur Migrants Bustamante 2008, supra note 23, p. 11. 45 UNHCR Guidance Note on Gangs 2011, supra note 32, p. 4-6. 46Amnesty International Report, Invisible Victims: Migrants on the Move in Mexico, 28 April 2010, available at: http://amnesty.org/en/library/info/AMR41/014/2010/en [last accessed: 17 December 2011] (hereinafter: Amnesty International 2010), p. 5.

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of Tapachula, Chiapas in the south of Mexico. There are numerous accounts of people falling off and dying or losing limbs in the process. These accidents sometimes happen when members of criminal networks or public officials force migrants to come off the train. Criminal networks operate along the train line and other migration routes. When migrants fall in the hands of criminal organizations they are likely to be abused, tortured, raped and sometimes even killed. In addition, there are numerous reports of local and municipal police that also abduct, abuse, rape and extort migrants, either on their own behalf or in collusion with criminal organizations.47 Being apprehended by migration authorities does not automatically mean that migrants are safe from abuse and maltreatment. Even in migrant holding centres (estaciones migratorias)48 they might be subjected to violence, extortion and abuse.49 Among the irregular migrants, women and children are the most vulnerable, as they run a greater risk of being trafficked, raped, and otherwise sexually and physically abused or exploited. It is believed that six in every ten female migrants will be subjected to some form of sexual abuse during their journey.50 Some smugglers even provide an anti-conception injection before women enter Mexico to lower the risk of getting pregnant.51 In the last years, irregular migrants (among who are likely asylum seekers and persons otherwise in need of protection) have increasingly become targets of kidnappings, to such an extent that organisations speak of an epidemic and a routine.52 The Mexican National Commission on Human Rights (CNDH)53 reported that in a six-month period between 2008 and 2009, 9,758 migrants had been kidnapped on 198 occasions.54 Even a higher number was noted in the period April-September 2010, when on 214 occasions a total of 11,333 migrants were kidnapped.55 The CNDH stipulates that it counted the minimum numbers in testimonies, therefore that the problem could in fact be much bigger than these numbers demonstrate.56 The mode of operation of these kidnappings is that migrants are forced to get off the freight train, get taken to a so-called ‗safe house‘ (which is a location where migrants are deprived of their liberty) and are forced to reveal telephone numbers of their family, either in their home country or in the United States. Family members are then told to pay a ransom. In the process, migrants are often tortured and raped in order to force them to reveal information, or for no apparent reason. Migrants are beaten in front of other migrants, threatened, and sometimes end up getting killed for not being able to pay the ransom. In

47 48

Amnesty International 2010, supra note 46, p. 21-24. All irregular migrants that are apprehended by the authorities are placed in these centres with the purpose of deportation. 49 UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, Fourteenth Session 4-8 April 2011, Concluding Observations, Mexico, 3 May 2011, CMW/C/MEX/CO/2 (hereinafter:UN CWM 2011), p. 6; UNGA Special Rapporteur Migrants Bustamante 2008,supra note 23, p. 15, par. 51. 50 Amnesty International 2010, supra note 47, p. 5. 51 Id., 15. 52 Id., p. 11. 53 CNDH is the abbreviation of the Spanish name: ‗Comisión Nacional de Derechos Humanos‘. 54 CNDH 2011, supra note 27, p. 12. 55 Id., p. 26. 56 Id., p. 23.

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2011, several mass graves were discovered with bodies of migrants.57However, numerous migrants simply disappear, never to be found again. In situations where migrants cannot pay the ransom, they might be forced to provide services to the gang or cartel, as a way of paying of their ‗debt‘. This might involve sexual exploitation, domestic servitude, engagement in illicit activity such as smuggling of drugs, and being forced to recruit other migrants to join the organization or gang. In other words, these kidnappings can evolve into a trafficking situation. When migrants have succeeded in transiting Mexico, they face the difficult task of crossing the United States-Mexico border. In the last two decades, the United States has greatly expanded its border control efforts. Along parts of the border, the United States has erected a wall, increased border patrols and enhanced surveillance techniques.58 These efforts have not withheld migrants from trying to move to the United States. Instead, it has contributed to migrants more frequently using smugglers to cross the border and to them taking more dangerous routes through the scourging desert. Many migrants have found their death in the process. While most migrants are aware of the dangers they will encounter on their way north, especially in Mexico, they are nonetheless willing to take these risks in order to escape the dire situation they live in.59 Prospects of ever being able to make enough money to provide for the family are so slim, that many see no other option than to find work elsewhere, even if they are being paid much less than local employees. For example, illegal Mexicans in the United States earn 60% of the salary of their colleagues who have a legal status.60 However, as mentioned, this is still more than what they would be paid in Mexico. Likewise, Guatemalan migrant workers earn 60% of what a Mexican employee in Mexico would earn, which is still up to 50% more than what they would be paid in Guatemala.61 The migration – smuggling – trafficking connection Generally, irregular migrants and asylum seekers are most vulnerable to falling victim to trafficking and other crimes. They lack resources, documents and knowledge of the laws of the country. They are unfamiliar with the territory they are travelling through. Also, they choose more dangerous routes through obscure and isolated locations and often travel by

57

On 25 August 2010, bodies of 72 migrants were found in the state of Tamaulipas, in the northeastern part of Mexico; BBC, ―Mexico migrants victimized by drug cartels‖, 27 August 2010, available at: http://www.bbc.co.uk/news/world-latin-america-11109404 [last accessed: 21 December 2011]; Washington Office for Latin America (WOLA), Migration, Development, and Human Rights in the United States and Mexico: Policy recommendations for both governments, September 2011, available at: http://www.wola.org/node/2018 [last accessed: 21 December 2011] (hereinafter: WOLA 2011), p. 5. 58 See below under anti-trafficking strategies. 59 As one migrant from El Salvador stated: ―We are going to die, one way or another‖. CNN, ―Despite danger, Central Americans migrate through Mexico‖, 20 May 2011, available at: http://edition.cnn.com/2011/WORLD/americas/05/19/mexico.migrants/index.html?iref=allsearch [last accessed: 21 December 2011]. 60 UNGA Special Rapporteur Migrants Bustamante 2008, supra note 23, p. 10. 61 Id., p. 11.

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night to avoid contact with the authorities. Their wish and sometimes despair to reach the United States makes them even more vulnerable to (fake) offers of jobs and transfer. As a result of the dangers on the road and the difficulty of crossing the United States-Mexico border, migrants increasingly turn to smugglers (or as they are called in the region ―coyotes‖ or ―polleros‖).62 Smuggling rings work from Central America and the southern states of Mexico.63 These networks are more and more operated by gangs and organized criminal networks that are also engaged in trafficking.64 Consequently, migrants run the risk of being trafficked instead of smuggled, to which they initially agreed. They might be handed over to a trafficker or person who will exploit them, or they might be trafficked and exploited by the same network that promised to smuggle them. Sometimes smuggled migrants are forced to pay off their smuggling fee, under dire working conditions and at unfairly low rates.65 Furthermore, criminal groups involved in smuggling and trafficking also conduct kidnappings of migrants or are connected to groups that engage in kidnappings. As described above, it is no exception that a kidnapping turns into a trafficking situation. It is, therefore, difficult to distinguish the act of trafficking from smuggling as both smuggling and kidnapping might lead to a trafficking situation and as the offenders of these different crimes might be part of the same gang or criminal network. Several other elements contribute to the diffusion of the crimes of trafficking and smuggling and to trafficking being intertwined with the migration flow through Mexico. First of all, public officials, especially local and municipal police, condone or collude in the crime of trafficking on a disturbingly frequent basis. At times, these corrupt officials are migration officials, working for the very institute that is supposed to protect migrants. Secondly, there are reports that migrants are even recruited (for gang membership or trafficking purposes) directly outside and sometimes even in the shelters that try to provide protection to migrants.66 Thirdly, traffickers or others involved in committing or supporting the crime might be the same Central American or Mexican gang members that the United States had previously expelled from its territory. Finally, the terminology in Spanish might cause for confusion, given that the translation in Spanish for trafficking is ―trata‖, while the word for smuggling more closely resembles the English word for trafficking, namely ―trafico‖. It is not uncommon that people, including public officials and journalists, use the word trafico where they are actually talking about a trafficking situation or that information about smuggling is translated into English as trafficking.67 Furthermore, migrants traveling to Mexico to work in, for instance, agriculture, restaurants and domestic work, are at risk of ending up in an exploitative situation that can be considered
62 63

Congressional Research Service 2011, supra note 2, p. 3. Comisión Nacional de Derechos Humanos (CNDH), Diagnóstico de las condiciones de vulnerabilidad que propician la trata de personas en México, Centro de Estudios e Investigación en Desarollo y Asistencia Social, A.C., Mexico 2009, par. 173. 64 UNGA Special Rapporteur Migrants Bustamante 2008, supra note 23, p. 10. 65 CIDH 2011, supra note 27, p. 9; Congressional Research Service 2011, supra note 2, p. 3. 66 CNDH 2011, supra note 27, p. 28. 67 See also Congressional Research Service 2011,supra note 2, p. 1.

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trafficking. Labour conditions in these sectors already frequently are below standards. There is little control of the working conditions and the salaries paid. However, bad labour conditions do not necessarily make for trafficking. It does become trafficking when the person involved is deceived, forced or otherwise coerced to do a certain kind of work and ends up in an exploitative situation. This is the case when Central Americans are recruited to work in the coffee plantations or domestic service in (the southern states) of Mexico and are promised a certain salary, but after arrival find out that their salaries are far less and their working hours much longer than what is allowed by law. They might be threatened, abused or otherwise mistreated. In these situations it is difficult to recognise that a person is a victim of trafficking. Also, people in such situations frequently do not consider themselves to be a victim of trafficking. It is a little more obvious when women were recruited to work in bars and restaurants, but end up being forced into prostitution instead. Thus, many trafficked victims are migrants from both Mexico and Central America trying to make their way to the United States. However, migrants are also trafficked in between the Central American countries, from Central America to Mexico and within Mexico. Anti-trafficking strategies and policy approaches Human trafficking is considered both a crime and a human rights violation. Policy approaches tend to be built on the perspective of one or both of these two characteristics. As a result, anti-trafficking policy ideas are generally based on a law-enforcement approach (policing, immigration and border control, national security68), on a migration approach,69 on approach of human rights violations, or on an economical approach addressing the push and pull factors of human trafficking.70 Practical responses largely aim to apply the so-called ―3P‖ strategy, meaning that antitrafficking measures integrate prevention of trafficking, protection of victims, and prosecution of offenders. In more recent years a fourth ―P‖ has been added to these strategies, which stands for partnerships between government and non-governmental organizations, private industry, and faith-based organizations at local and national levels, as well as the international level.71 In practice, most governmental efforts and efforts by international organizations have been made in the field of law-enforcement and prosecution of offenders of human trafficking. For example, the Trafficking Protocol is a supplement to the U.N. Convention on Organized Crime and the office mandated to support countries in the fight against trafficking is the United Nations Office on Drugs and Crime (UNODC). UNODC anti-trafficking projects mostly see to the strengthening of national law-enforcement mechanisms.72 Also, the multi-

68

Ryszard Piotrowizc, Human security and trafficking of human beings: the myth and the reality, in: Alice Edwards & Carla Ferstman, Human Security and Non-Citizens: Law, Policy and International Affairs, 2010 (404-418) (hereinafter: Piotrowizc 2010) p. 406. 69 Organisations such as the IOM, the ILO, and Anti-Slavery International adopted a migration approach. 70 Goodey 2010, supra note 11, p. 705. 71 Aronowitz 2011,supra note 7, p. 123. 72 Id., p. 123.

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stakeholder initiative to promote the fight against trafficking (UN.GIFT) primarily views human trafficking as a crime.73 However, the Mexican situation vividly demonstrates a strong connection between the crime of trafficking and the movement and vulnerability of migrants and asylum seekers, the smuggling of migrants, the migration and trafficking routes, and the push and pull factors for migration and for trafficking. It therefore provides an exemplary case to study the trafficking phenomenon and the combat against it, from a perspective of migration movements and migration measures that could be used as anti-trafficking instruments. Below, I analyse some of these migration and asylum protection measures. Each measure will be investigated in the light of the ―3P‖ approach, meaning that I will raise the question how each measure contributes to protection of the victim, prevention of the crime and prosecution of the offender. My research focuses on Mexico as a country of origin, destination and transit, on the United States as a country of destination, and on the collaboration with Central American countries as countries of origin. Based on the legislation and practice I identify already available options, but also unused possibilities and alternatives. In doing so, I do not mean to be exhaustive, but rather, I wish to signal possibilities as to how a migration approach could help combat trafficking through protection, prevention and prosecution and how migration measures can be improved to meet that end. Analysis of a migration and asylum approach Mexico, the United States and all relevant Central American countries have ratified the Trafficking Protocol.74 Article 7, paragraph 1, of the Trafficking Protocol determines that ―each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases.‖ Article 14 prescribes: ―Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.‖ Protection status for trafficked refugees Given the statistics on the violent situation in Central-America and parts of Mexico, as well as the number of asylum seekers that have been granted asylum in Mexico and the United States, it is likely that a number of trafficked victims in fact fled their country in an attempt to find a safe haven and who could already have qualified for international protection, had they not fallen into the hands of traffickers. In other words, possibly among the trafficked victims
73 74

http://www.ungift.org/knowledgehub/en/about/index.html [last accessed: 20 December 2011]. Belize accessed the Trafficking Protocol on 26 September 2003, El Salvador ratified the Trafficking Protocol on 18 March 2004, Guatemala accessed the Trafficking Protocol on 1 April 2004, Honduras accessed the Trafficking Protocol on 1 April 2008, Nicaragua accessed the Trafficking Protocol on 12 October 2004, Mexico ratified the Trafficking Protocol on 4 March 2003 and the United States ratified the Trafficking Protocol on 3 November 2005, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12a&chapter=18&lang=en [last accessed: 21 December 2011).

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there were refugees or people otherwise in need of protection, for reasons unrelated to their trafficking situation. On 28 January 2011, the new Mexican act on refugees and complementary protection entered into force.75In Article 13(I) the law incorporates the refugee definition as provided in the 1951 Refugee Convention.76 Mexico has also included the refugee definition of the Cartagena Declaration in its new law (Article 13(II)). That means that also persons who have fled their country ―whose life, security or liberty were threatened due to generalized violence, foreign aggression, internal conflict, massive human rights violations, or other circumstances that severely disrupted the public order‖, can be recognized as a refugee under Mexican law. The United States law also largely follows the refugee definition as given in the 1951 Refugee Convention, but it does not include a generalized violence provision.77 In both Mexico and the United States, asylum seekers from Central America have been recognized as refugees and the United States has recognized Mexican asylum seekers as refugees. Although no data are made available by the Mexican government, sources working in the field have confirmed that some refugee statuses have been granted based on the Cartagena definition, for example, to Colombian refugees. It is imaginable that also in some cases of Central American asylum seekers, the COMAR would accept the violence to fall within the definition of the Cartagena Declaration.78 Trafficked victims could also have intended to leave their country because they ran the risk of being subjected to torture, or other cruel, inhuman and degrading treatment or punishment, for reasons unrelated to the trafficking process.79 In such a case, the Mexican refugee law authorises that complementary protection be granted.80 This visa comes with the same rights as are attached to refugee status.81 However, victims with complementary protection status do not receive the same humanitarian assistance as is available for refugees. In the United States an asylum seeker could be eligible for protection against refoulement (removal to a country where a person runs the risk of torture, or other cruel, inhuman and degrading treatment). However, this protection does not include a permit to stay and live in the United States. Thus, the person who cannot return is not allowed to work and only has rights to the most basic services, such as medical care in case of an emergency.82

75 76

Ley Sobre Refugiados y Protección Complementaria, Nueva Ley DOF 27-01-2011. Article 1A (2), 1951 Refugee Convention. 77INA § 101(a)(42)(A) and 8 U.S.C.A. § 1101(a)(42)(A). 78 See UN High Commissioner for Refugees, Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees (Submitted by the African Group and the Latin American Group), 6 April 1992, EC/1992/SCP/CRP.6, available at: http://www.unhcr.org/refworld/docid/3ae68cd214.html [accessed 20 December 2011]. 79 Article 3 of the Convention Against Torture prohibits such treatment. Bot the United States and Mexico are parties to this convention: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV9&chapter=4&lang=en. 80 Article 2 (IV) and Article 28 of the ‗Ley sobre Refugiados y Protección Complementaria‘. However, the prohibition to return a foreign national who is in need of this protection is not absolute. Article 28 excludes persons from complementary protection who have committed crimes as defined in Article 1(F) of the 1951 Refugee Convention. 81 Article 51(I) Ley de Migración. 82 See Deborah Anker, The Law of Asylum in the United States, Thomson West: 2011 (hereinafter: Anker 2011), § 7:2.

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Victims of trafficking, who receive refugee protection or complementary protection unrelated to being trafficked, might be in need of additional protection other than being allowed to stay in the country and not being sent back to the home country. They may require medical assistance and psychological help to deal with traumas. Also, they might still run a risk at reprisals in the country that provides the refugee or non-refoulement protection. Finally, they might need help in (re-)integrating in society. Both in Mexico and the United States, this is legally available for refugees, but only partly for persons in need of complementary protection. In conclusion, these trafficking victims may have been or may be eligible for refugee or complementary protection based on a claim unrelated to their trafficking situation. Had they received this protection at an earlier stage, trafficking could possibly have been prevented. It is therefore essential that national asylum procedures function properly and that vulnerable persons in need of protection are quickly identified.83 In addition, trafficked refugees might be in need of assistance and protection other than their refugee or complementary protection status. These needs should not be overlooked as soon as a protection status has been granted. Addressing these needs could diminish the vulnerable position of trafficking victims and reduce the risk of re-trafficking. Also, experience has shown that victims are more inclined to participate in a criminal investigation when their residence permit is not conditioned upon such participation and when they feel safe and protected.84 Protection against persecution of trafficking victims UNHCR, as well as several domestic courts, recognise that a trafficked victim for reasons related to the trafficking situation, could fall under the 1951 Refugee Convention. That does not mean that any trafficked person as such could be considered a refugee. Instead, the victim must also demonstrate a well-founded fear of persecution based on one of the grounds of Article 1(A) of the 1951 Refugee Convention. In 2007, Mexico adopted the Law to Prevent and Sanction Trafficking in Persons in order to implement the Trafficking Protocol.85 Article 17(II) prescribes that the federal authorities need to adopt all measures necessary to guarantee the protection of trafficking victims, one of these measures being to provide migration assistance to victims. One of the adopted measures is the abovementioned law on refugees and complementary protection, which grants protection for individual persecution, for generalized violence and against refoulement. Mexico has not published any data on the reasons for granting or not granting refugee protection, nor does it motivate the decisions on asylum applications. It is, therefore, difficult to tell whether trafficking victims in Mexico have been granted refugee or complementary

83 84

See below under ―Issues relating to trafficking victims in migration and asylum procedures‖. UN High Commissioner for Refugees, Trafficking for sexual exploitation: victim protection in international and domestic asylum law, April 2011, ISSN 1020-7473, available at: http://www.unhcr.org/refworld/docid/4dc253a22.html [last: accessed 19 December 2011] (hereinafter: UNHCR 2011-II), p. 25. 85 Ley para Prevenir y Sancionar la Trata de Personas; International Organisation for Migration (IOM), Helene Le Goff & Thomas Lothar Weiss, La Trata de Personas en México: Diagnóstico sobre la asistencia a victimas, June 2011, available at: http://www.oim.org.mx/index.php?acc=Publicaciones [last accessed: 20 December 2011] (hereinafter: IOM Diagnostico 2011), p. 39.

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protection as a result of their being trafficked. However, according to IOM staff such statuses have in fact been granted. UNHCR has stipulated that some of the acts involved in trafficking might constitute persecution. Such acts include ―abduction, incarceration, rape, sexual enslavement, enforced prostitution, forced labour, removal of organs, physical beatings, starvation, the deprivation of medical treatment.‖86 That implies that past trafficking might amount to past persecution. In addition, UNHCR considers reprisals, the fear of being re-trafficked, and trauma, ostracism and discrimination as a result of trafficking to amount to persecution.87Generally, also in the United States, trafficking is recognised as a human rights violation that might amount to trafficking.88 However, in practice, opinions on trafficking cases showed different results on which acts amount to trafficking.89 Once it is established that the trafficking in a particular case amounts to persecution, it must be assessed whether the victim is persecuted for reasons of one or more of the persecution grounds. UNHCR has explained that although the principal reason for trafficking a person is usually profit, certain persons could be specifically targeted, because of any of the prosecution grounds. The most likely ground in cases of trafficking is that of belonging to a particular social group. To be considered a particular social group, the persons in this group must share common and immutable characteristics. Many countries, including the United States, have difficulty accepting that trafficked persons could be a particular social group in itself. They reason that, as trafficking constitutes persecution, ―a particular social group cannot be defined solely by the persecution.‖90 UNHCR, however, contends that ―former victims of trafficking may also be considered as constituting a social group based on the unchangeable, common and historic characteristic of having been trafficked‖. This does not apply to fear of future persecution. 91 In the context of Central America, Mexico and the United States, most victims of sex trafficking are women and children or adolescents. Often, these women are single mothers, because their partner has left them or because he has been killed or has been disappeared. The women frequently are illiterate or have a low level of education and live in (extreme) poverty, with very few prospects of a better future. Children and adolescents who are trafficked often come from broken homes or are orphans. They live on the street or in otherwise dire circumstances. Usually, they have had very little to no education. Generally, these groups are particularly marginalized and vulnerable. Even more vulnerable are women and children who belong to indigenous groups that often do not speak Spanish well and who are already discriminated against, because they belong to an indigenous group. UNHCR suggests that certain groups of women or children, who share characteristics that might make them more vulnerable to trafficking, could be considered a particular social group. Such marginalizing factors could, for instance, be the level of poverty, the fact that a

86 87

UNHCR 2006, supra note 8, p. 6. Id., p. 7. 88 UNHCR 2007, supra note 6, p. 15. 89 Id. 90 Id., p. 22. 91 UNHCR 2006, supra note 8, p. 14.

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woman is divorced or widowed, or the fact that a child is an orphan or lives on the street. 92 United States immigration judges and officials tend to narrow down particular social groups to very specific categories.93 However, they are very inconsistent in what and what cannot be considered a particular social group in the trafficking context.94 Some examples in which U.S. immigration judges did accept the existence of a particular social group were ―abused, unwanted children sold into labour by their parents‖, an ―ethnic group in Thailand, which ha[d] been forced into indentured servitude and deprived of the right of citizenship‖ and ―young women in Albania threatened with abduction and being forced into prostitution‖.95 Thus, following the UNHCR and United States interpretation (due to a lack of data no conclusions can be drawn on Mexico) certain women, children and adolescents from Central America and Mexico could be considered to constitute a particular social group. It is probably more difficult for young men trafficked for forced labour (or other forms of exploitation) to make a case of belonging to a particular social group. Some of the characteristics that they share might be considered too broad, such as being a young male, living in poverty and having very little to no education and little prospects of a better future. This does not make them any more particular than other young men in poor or developing countries. However, they could fear for persecution because of one of the other ground, especially in the situation of fear for maras or cartels that use trafficking as a means of persecution. For example, refusal to be recruited for a gang can be attributed to a person‘s political opinion.96 Furthermore, it is widely accepted that actors of persecution can be non-state actors. In that case, the state must be unwilling or unable to provide protection to the victim. It could be argued that the violent situation in most Central American countries, with high levels of corruption and collusion with criminal networks, and the great influence of maras, has left the government sometimes unwilling and sometimes unable to give protection. One author has also suggested that, due to high levels of corruption and collusion of public officials in the trafficking business, the Mexican state might be considered to be unable to provide protection, despite the fact that many legislative and administrative measures are in place to combat trafficking.97 In other words, theoretically, trafficking victims from Central America and Mexico should be able to get refugee protection related to the trafficking situation in the United States. And given the current law on refugees, this should also be the case in Mexico. However, hesitancy of immigration judges and officials to accept the presence of certain elements of the refugee definition and problems in identifying trafficking victims as victims and as possible refugees might cause for considerable obstacles for trafficking victims to receive the refugee protection they actually deserve.

92 93

UNHCR 2006,supra note 8, p. 14. Anker 2011, supra note 82, §5:42-5:66; See for a comprehensive analysis of particular social groups, gender and trafficking: UNHCR 2011-II, supra note 84, p. 8-20. 94 UNHCR 2011-II, supra note 84, p. 19-20. 95 UNHCR 2007, supra note 6, p. 23. 96 UNHCR Guidance Note on Gangs 2011, supra note 33. 97 UNHCR 2011-II, supra note 84, p. 22.

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Refugee protection would make trafficking victims less vulnerable to re-trafficking, as it allows them access to certain rights (such as housing, education) and services (e.g. psychological care) of the host country. However, this does not also automatically protect them against reprisals of traffickers. It might be necessary to assess the need for additional protection. Regarding prosecution opportunities, as mentioned, it has been argued that victims with a protection status (or any status that is not conditioned to participation in a criminal trial) are more willing to assist in the investigation or prosecution of the trafficker.98 Trafficking victims, who are not considered refugees, could also be recognized as deserving protection for fear of being subjected to torture, cruel and other inhuman and degrading treatment. For example, when it has not been possible to establish persecution ground or nexus to such a ground, a victim could still run the risk of reprisals, re-trafficking, ostracism or discrimination that might amount to torture or cruel, inhuman or degrading treatment. Although this solution protects victims from risks they might run in the country of origin, problematic is that in the case of the United States protection does not extend beyond that. However, a trafficking victim might be in need of physical and psychological assistance, housing and assistance to (re)integrate into society. A victim needs to be able to build a new life and make a living, to prevent that he or she again falls victim to traffickers. If a victim is not allowed to work and does not have the right to housing, education or medical care that goes beyond emergencies, he or she remains vulnerable. Beneficial to prosecution efforts is that granting (complementary) protection seems to increase the likelihood of victims collaborating in a criminal trial.99 It should be taken into account that participation of a victim in a criminal trial might require additional safety measures (against reprisals), even if the victim is already authorised to stay in the country. Temporary protection Article 18(III) of the Mexican trafficking act determines that protection of victims should include the possibility of legal stay in Mexico during the legal procedure. That possibility already existed under previous laws and has now been incorporated in Article 52 of the recently adopted Mexican migration law.100 One of the temporary residence permits carries the name ‗Visitante por razones humanitarias‘, which translates to a visa for humanitarian reasons. A migrant is eligible for this visa when he or she is a victim (or witness) of a crime committed on Mexican territory. This humanitarian visa allows the victim to stay in Mexico until the end of the procedure. Although none of the legal provisions specify which legal procedure, it seems that both articles refer to a criminal procedure in which the suspected trafficker is prosecuted.101

98

UNHCR 2011-II, supra note 84, p. 25. This is also the experience of IOM employees in Mexico. 2011-II, supra note 84, p. 25; See also UN High Commissioner for Human Rights, The trafficking of women for sexual exploitation: a gender-based and well-founded fear of persecution? March 2003, ISSN 10207473 available at: http://www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=3e71f84c4& query=shearer%20demir%20trafficking%20women [last accessed: 21 December 2011] (hereinafter: UNHCR 2003). 100 Ley de Migracion, Nueva Ley DOF 25-05-2011. 101 As confirmed by IOM staff in Mexico D.F.
99UNHCR

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A visa for humanitarian reasons comes with the some same rights as the other permits that regulate stay in Mexico. Thus, a trafficking victim with such a visa can receive medical attention, go to school, and find housing. However, the last paragraph of Article 52 implies that the victim is not allowed to work. Also, this temporary permit cannot be changed into a more permanent form of stay.102 Furthermore, it seems that only in a small number of cases temporary visa were granted to trafficking victims.103The vast majority is repatriated, some leave before the end of the procedure (mainly to continue their way to the United States), and a few are granted refugee status. In the United States, trafficking victims are eligible for a so-called T-visa, as provided in the Trafficking Victims Protection Act (TVPA). These visas are limited to victims of forced labour or sex work and of severe forms of trafficking.104 It will only be provided under the condition that the victim participates in a criminal trial.105 The permit is valid for four years, but can be extended and changed into a permanent visa after at least three years and under the condition that the victim has assisted in the criminal investigation or would ―suffer extreme hardship upon removal‖.106 Victims with a T-visa receive more or less the same benefits as recognized refugees, such as assistance in finding employment, access to shelters, medical care, and language training.107The U.S. government applies a quota of 5,000 T-visa per year.108 This quota is heavily underutilised with only 394 T-visa applications in 2008, of which 247 were granted.109 In that same year, Mexican nationals were among the top three nationalities to apply for T-visa.110 While a temporary permit, conditioned to the assistance in a criminal investigation, has proven to be beneficial for the protection of victims and the prosecution of traffickers, there remain points of concern. The fact that these visas are temporally limited creates great insecurity with the victim, particularly when the visa is granted until the end of the procedure and not for a predetermined period. This makes it more difficult for victims to work on recovery and reintegrate in society. In addition, as said, when a residence permit is not conditioned upon assistance in a criminal procedure, the chances of victims participating in such a procedure are greater.111

102 103

Article 53 Ley de Migracion. CMW 2011, supra note 49, p. 8. 104 22 U.S.C.A. § 7102 (8): The term ―severe forms of trafficking in persons‖ means—(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 105 UNHCR 2011-II, supra note 84, p. 26; Anker 2011,supra note 82, par. 1.16. 106 8 U.S.C.A. § 1255 (I)(1)(C)(i) and 8 U.S.C.A. § 1255 (I)(1)(C)(ii). 107 UNHCR 2003, supra note 99, p. 21; UNHCR 2011-II, supra note 84, p. 26. 108 8 U.S.C. § 1185 (0). 109 UNHCR 2011-II, supra note 84, p. 27. 110 Id., p. 22. 111 Id., p. 25.

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Residence permits on humanitarian grounds Some countries, like most European countries, have included in their migration and asylum protection laws the possibility to give residence permits on humanitarian grounds.112 That generally means that a person does not qualify for refugee protection or complementary protection, but that for humanitarian reasons it would be inhuman or unreasonable to demand that the person returns to his or her home country. For example, Dutch law provides for the possibility to grant a visa on humanitarian grounds, but it requires that the humanitarian reasons be related to the asylum account and to the reasons for leaving the country of origin. Circumstances such as illness and old age are therefore insufficiently severe to be granted a visa on humanitarian grounds.113 In most countries, like in The Netherlands, the power to grant such humanitarian visa is highly discretionary. As a consequence, distribution of humanitarian visa for trafficking victims greatly depends on the circumstances of the case and on the politics of the receiving country.114 Stay on humanitarian grounds as such, is an option unfamiliar to United States law. The Mexican visa for humanitarian reasons, however, in addition to the temporary stay for victims of a crime, can also be granted on humanitarian grounds. Migrants with a visa on humanitarian grounds are allowed to work, contrary to victims of a crime. However, also this visa cannot be turned into a permanent one.115 Finally, the visa for humanitarian reasons can also be granted to unaccompanied minor migrants. This could be of great value to trafficked children. However, Article 74 of the migration law provides that this visa will only be granted provisionally, until the Mexican authorities offer other temporary or permanent alternatives, that could include assisted return. Until then, the minor does have more access to facilities and can, for example, attend school. For destination countries, such as the United States and Mexico, it would be worth exploring the possibility of granting a visa on humanitarian grounds to trafficking victims, who are not recognized as refugees and who are considered not to be in need of complementary protection. For example, victims can be so traumatized that it would be unreasonable to repatriate them or they might face discrimination that does not reach the level of persecution or ill-treatment. In such cases, a humanitarian visa could protect a trafficking victim from re-victimization and even re-trafficking. Also, eventually the victim might be more willing and be more able to cooperate in investigations into crime the trafficking, when they do not have to worry about the legality of their stay and receive medical (psychological) treatment.

112

European Council on Refugees and Exiles (ECRE), Complementary Protection in Europe, July 2009, available at: http://www.ecre.org/topics/areas-of-work/protection-in-europe/149.html [accessed 20 December 2011]. 113Article 29, paragraph 1, under c, Aliens Act 2000; Tussentijds Bericht Vreemdelingencirculaire (TBV 2001/29). 114 UNHCR 2003, supra note 99, p. 22. 115 Article 53 Ley de Migracion.

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Deportation versus safe repatriation Article 8 of the Trafficking Protocol requires that the victim‘s return to his or her country (or country of residence) be carried out with due regards for the safety of the person, without undue or unreasonable delay, with due regard for the status of any legal proceedings related to the fact that the person is a victim of trafficking and preferably be executed voluntarily. It is argued that this ‗safe return‘ should entail more than ensuring that the victim does not face immediate danger upon return. It should also include measures to help the victim reintegrate in society and make him or her less vulnerable. In its Trafficking Guidelines, UNHCR recommends that states consider ―(…) ensuring that trafficked persons who do return to their country of origin are provided with the assistance and support necessary to ensure their well-being, facilitate their social integration and prevent re-trafficking. Measures should be taken to ensure the provision of appropriate physical and psychological health care, housing and educational and employment services for returned trafficking victims.‖116 There are numerous reports that despite the existing law and regulations,117 in Mexican practice, trafficking victims are amongst the migrants in migrant holding centres and receive the same treatment as given to other migrants in these centres (as described above). In some cases, migrants are almost immediately deported, especially when there are good bilateral relationships with the home country, such as with Guatemala, El Salvador, Honduras and Nicaragua. This equally applies to trafficking victims. The speed with which migrants are deported, suggests that they are not sufficiently informed about their procedural rights and migration and protection opportunities in Mexico. This corresponds with findings from NGOs and international organizations that, despite news reports about the dismantling of trafficking rings and the rescue of trafficking victims, they rarely see and assist trafficking victims. Supposedly, the victims already agreed to be deported before they had contact with these organizations.118 It has also been reported that voluntary repatriation was in fact in some cases not voluntary.119 Generally, there are little to no mechanisms for re-integration in place in Central American countries that receive repatriated trafficking victims. Although the actual repatriation may be safely organised and carried out in coordination with the receiving state, without additional re-integration measures, the victim will remain vulnerable to reprisals and re-trafficking. On another note, the deportation by the United States of gang members to Mexico and Central America is a migratory measure that intends to fight crime in the United States, but has turned out to exacerbate the smuggling and trafficking problem in the region. Alarming numbers of ex-convicts have already been deported and many more await deportation. As at 2005, almost 35,000 Mexican nationals were serving time in United States prisons, albeit state or federal. All of these convicted criminals faced deportation at the end of

116

United Nations, Recommended Principles and Guidelines on Human Rights and Human Trafficking, November 2010, HR/PUB/10/2, available at: http://www.unhcr.org/refworld/docid/4d2eb7cf2.html [accessed 23 December 2011], p. 181. 117 For example, Mexican law prohibits the detention or placement in migrant holding centres of trafficking victims (Article 6(B)(IX) Circular No. 011/2011, 7 June 2011). 118 UNGA Special Rapporteur Migrants Bustamante 2008, supra note 23, p.17 and 20. 119 Id., p. 17.

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their sentence.120Thus, it appears that there is not yet an end to this practice in sight. It is clear that these deportations are undermining anti-trafficking efforts and are reinforcing the violence in the region. Deportation that is not accompanied by any reintegration programs cannot be a solution to United States‘ problem with criminal foreign nationals, when at the same time efforts are made to combat trafficking, smuggling and other crimes against migrants, such as kidnapping. This is especially so, given that most of the deportees have spent the majority of their life in the United States and are likely to attempt to return. There have been some initiatives in an effort to address this problem. For example, Mexico initiated a programme that paid for education of Mexicans in American prisons. However, this programme only reached about 700 inmates.121 A more holistic, regional strategy needs to be developed. All Central American countries, Mexico and the United States should be involved in the development of such a strategy that could include mechanisms for reintegration, education and the removal of gang-related tattoos. Reflection and recovery period Some legal regimes provide a form of temporary legal stay during, what is often called, a reflection or recovery period. For instance, the Council of Europe Convention on trafficking calls for the introduction of a 30-day recovery and reflection period in all Member States, during which the states authorise the victim to stay in its territory and during which the victim is to take ―an informed decision on cooperating with the competent authorities‖.122 Australia applies a 45-day period that can be extended with another 45 days if the suspected victim, for medical reasons is incapable of participation in a trial. The first 45 days are, however, not conditioned upon participation in a criminal trial.123 Other countries, like Belgium and The Netherlands, authorise a reflection period of three months.124 Mexican law includes a type of reflection period. There is no given timeframe, but instead the law expresses that when it becomes clear during the interview with the authorities, that the victim is too emotional to make a decision on whether he or she wants to return to his or her country or to stay in Mexico, the victim will be send to a shelter where he or she receives medical and psychological care.125 There is no further explanation as to how long the victim will stay in the shelter and when the procedure will be continued. Also, I have not found information indicating that this period has actually ever been afforded to any (suspected) trafficking victim. Instead, as described above, most sources express concern about the fast deportation of irregular migrants and that in that process trafficking

120 121

Cicero-Domínguez 2005, supra note 41, par. 53-58. Cicero-Domínguez 2005, supra note 43, par. 72. 122 Article 13 Council of Europe Convention on Action against Trafficking in Human Beings, Council of Europe Treaty Series No. 197, Warsaw 16 May 2005; http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=197&CM=8&DF=18/12/2011&CL=ENG [Last accessed: 21 December 2011]. 123 UNHCR 2011-II, supra note 84, p. 24. 124 UNHCR 2003, supra note 99, p. 23. 125 Article 113 Ley de Migracion; Article 8 Circular No. 011/2011: Circular por la que se instruye el procedimiento que debera seguir el Instituto Nacional de Migracion en la detencion, identificacion y atencion de personas extranjeras victimas del delito, DOF 07-06-2011.

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victims are not identified or after having been identified as such, are still deported in the same process.126 United States law does not provide for an official kind of recovery or reflection period, but it does create the authority to grant a certification of ‗continued presence‘. However, this instrument is completely conditioned on the prosecution process, to ensure the presence of the victim for the prosecution of the trafficker.127 Continued presence will only be granted if the victim indicated that he or she is willing to assist in the investigation, or when he or she is unable to cooperate as a result of physical or psychological trauma. 128 The continued presence is valid for one year, but can be extended for as long as necessary to complete the prosecution.129 Continued visa cannot be extended into a permanent stay.130 Both for the protection of victims and the prosecution of traffickers, a recovery or reflection period appears highly beneficial. Most people will not trust every detail of their story during the first contact they have with authorities. Primarily because it usually takes some time for people to confide in officials and share very private information that they often are ashamed of, but also, because some people are too traumatized, others are still too afraid and fear reprisals affecting themselves or their families. Or sometimes victims need time to process information received and decide what would be the best option for them, or a combination of factors applies. During a reflection period, victims have the opportunity to gain trust and assess their options. Sometimes additional safety measures are required to protect victims and their family. In other cases, a victim first needs medical and psychological treatment. It is highly likely that after a recovery period a victim has gained more trust in officials and is also better capable of cooperating with police investigations.131 There is a discussion on how long this reflection and recovery period should be. Anti-Slavery International argues that 30 days is not nearly enough and that the period should at least cover three months, like in Belgium and The Netherlands.132 Another option is to link the length of stay to the condition of the victim, but that criterion is very difficult to measure and it would raise such questions as who should be authorised to make that decision and on what grounds. Resettlement of trafficking victims In some cases a trafficking victim might have been recognized as a refugee, but at the same time it may be considered too dangerous for the victim to remain in the country to where he or she was trafficked and where he or she received refugee status. Dangers of reprisals (against both the victim and family members) and re-trafficking are especially present in the Mexican regional context, where networks of gangs and criminal organizations stretch throughout all of Central America, Mexico and the United States.

126 127

See above under ‗Deportation and safe repatriation‘. 22 U.S.C. § 7105 (b)(E)(ii)(II)(bb). 128 22 U.S.C. § 7105 (b)(E)(i) and (ii). 129 UNHCR 2011-II, supra note 84, p. 26. 130 Id., p. 26. 131 Anti-Slavery International 2011, supra note 1, par. 2 ―The merits of a reflection period‖. 132 Id.

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In Central American countries it seems almost impossible to escape the maras, making it unreasonable to ask that families make use of an internal flight alternative.133 Above, I described that there is a strong connection between Central American maras and gangs in the United States. Generally, the work of gangs and criminal networks is often not restricted by borders and considering the large diaspora of Central American and Mexican migrants in the United States it will not be difficult to find a relative or a gang member who can assist in carrying out across-the-border operations and threats. This raises the question whether for trafficking victims who are granted refugees status, but who remain at risk in the host country, resettlement could be an option? According to the UNHCR Resettlement Handbook, resettlement is a mechanism for refugee protection that needs to provide a durable solution and that includes an element of burden sharing.134 Historically, the mechanism has been used to manage large influx of refugees. For example, after the Second World War more than a million European refugees were resettled worldwide. Also, when President Idi Amin of Uganda expelled practically the entire ethnic Asian community, about 40,000 Asian Ugandans were resettled in 25 countries. And from 1999 until today, some 15,000 Somali Bantu refugees in Kenya have been resettled.135 However, in recent years, more and more individual refugees have been resettled.136 Generally, the resettlement program is used as a last resort, where the options of repatriation or integration in the host society are not available. As UNHCR describes: ―Resettlement may be necessary to ensure the security of refugees who are threatened with refoulement to their country of origin or those whose physical safety is seriously threatened in the country where they have sought sanctuary.‖137 UNHCR applies the following criteria to identify whether a refugee is eligible for resettlement: a host country cannot guarantee the legal and physical protection of the refugee, the refugee is a survivor of violence and torture, the refugee has specific medical needs, the refugee is a woman-at-risk, family reunification is possible, the refugee is a child or adolescent (unaccompanied), the refugee is of old age, or the refugee lacks local integration prospects.138 UNHCR describes that legal and physical protection in another country may be required when ―refugees are faced with threats that seriously jeopardise the continued stay in a country of refuge‖.139 Such threats might include the risk of being trafficked (for the purpose of sexual slavery), especially in the case of women. It could be argued that also the risk of reprisals by traffickers and the risk of re-trafficking in the host country could be considered as insufficient legal and physical protection. UNHCR reports that victims of trafficking are in fact being resettled under this and other criteria (for example, the women-at-risk criterion).140
133

UNHCR July 2011,supra note 39, p. 24. High Commissioner for Refugees, UNHCR Resettlement Handbook, July 2011, available at: http://www.unhcr.org/refworld/docid/4ecb973c2.html [accessed 17 December 2011] (hereinafter: UNHCR Resettlement Handbook 2011). 135 Id., pp. I/8-12. 136 Id., pp. I/13. 137 Id., p. IV/3. 138 Id., Chapter IV. 139 Id., p. IV/5 140 UN High Commissioner for Refugees, Review of UNHCR's efforts to prevent and respond to human trafficking, 29 September 2008, PDES/2008/07, available at:
134UN

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A complicating factor that prevents the full use of the resettlement program is that UNHCR largely depends on the willingness of countries to accept refugees. In the 2011 UNHCR Resettlement Handbook only sixteen countries are listed as participating in the resettlement scheme worldwide. Mexico is not one of those countries, but the United States is one of the main contributors to the programme. Each country applies its own additional criteria to determine whom they want to accept as a resettled refugee. Under United States law, cumulative criteria demand that refugees: ―1. Meet the definition of a refugee contained in Section 101(a)(42) of the INA (…); 2. Be among those refugees determined by the President to be of special humanitarian concern to the United States; 3. Be otherwise admissible under U.S. law; and 4. Not be firmly resettled in any third country‖.141 Within those criteria, the United States identifies priorities. Listed among the first priority are such categories as women-at-risk and persons facing security concerns. Thus, under these criteria trafficking victims could be eligible for the United States resettlement programme. There are no options for trafficking victims to be resettled in Mexico or any of the Central American countries. Admittedly, given the violence in the region and the widespread presence of gangs, chances of receiving protection as a trafficked victim in these countries are less than in the United States or other countries participating in the resettlement scheme. Trafficking victims, who still run a risk within the United States, after having been recognised as a refugee, will therefore have to leave the region under the scheme. Normally, language and cultural aspects are taken into account to facilitate the integration of a refugee in a new society. The only two countries of the programme with Spanish as an official language are Argentina and Chile. For trafficked refugees who cannot remain in the country of refuge, it would be sensible to explore the possibilities of resettlement (in Chile and Argentina) and of expansion of the resettlement program to other countries for these cases. Temporary work permits As described above, there is a strong demand for low-skilled workers in the United States. Mexican migrants moving to the United States to meet that demand, leave vacant low-skilled work that provides jobs for tens of thousands of Central American migrants. At the same time, poverty pushes many Mexicans and Central Americans to migrate in order to earn an income that provides for their family. More restrictive migration policies will not be able to counter the low-skilled migration flow, as long as the market needs these low-skilled migrant workers and as long as poverty in the region prevails. It is argued that stricter migration policies are also counter-productive to the fight against trafficking in persons and only contribute to an increase of the trafficking business.142 As the ILO puts it: ―more liberal migration regimes would probably diminish trafficking‖. 143 The United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families even recommends that states ―promote regular, safe migration
http://www.unhcr.org/refworld/docid/4d10b54f2.html [accessed 21 December 2011], p. 63. 141 UNHCR Resettlement Handbook 2011, supra note 134, p. USA/1. 142 United States Department of State, Trafficking in Persons Report 2010, available at: http://www.state.gov/g/tip/rls/tiprpt/2010/index.htm [last accessed 22 December 2011] (hereinafter: TIP Report 2010), p. 24. 143 ILO Perspectives on Labour Migration 2003, supra note 23, p. 11.

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under decent conditions as part of a strategy to combat trafficking in persons and migrantsmuggling‖. 144 However, the United States government in particular has given preference to more and more restrictive migration policies, especially for low-skilled labour. Some 90% of visa granted for employment are given to higher educated people. Mexican law provides for a visa that allows foreign nationals of the countries that Mexico shares a border with, being Guatemala and Belize, to stay in Mexico for one year.145 During that year, the temporary migrant is allowed to work and to enter and leave the country as he or she pleases. However, the migrant worker is only allowed to stay in the regions designated by the Secretary of Internal Affairs (Secretaría de Gobernacion). Historically, these have been the southern-most states of Mexico. This possibility of a temporary work permit could be a powerful tool in the prevention of human trafficking for several reasons: migrants do no longer need the services of a smuggler or a trafficker, they do not need to take clandestine routes that are within the territory of criminal networks. And, documentation puts migrants in a less vulnerable position and in a stronger bargaining position regarding work conditions and salary. Finally, it is easier to keep track of documented migrants. However, in order to have a larger impact, the Mexican initiative on temporary migrant labour should be extended to other Central American countries, especially El Salvador, Honduras and Nicaragua.146Even better would be if all the countries involved, including the United States, develop a regional low-skilled labour scheme for temporary migrant workers. This would also require more efforts of Central American countries to inform their citizens of their possibilities, rights and obligations regarding temporary labour migration. Still, even with documents labour conditions for low-skilled labour are often substandard and labour relations with migrant workers can remain abusive if there is insufficient labour control. To combat exploitative labour circumstance and to decrease the vulnerability of migrant workers, a scheme for legal temporary migrant work should thus be combined with more labour inspections.147 Border control Article 11 of the Trafficking Protocol requires states to ―strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons.‖ Many unilateral and bilateral migratory measures adopted to combat smuggling, trafficking and irregular migration see to the strengthening of border controls. As described above, the United States has put up a wall along parts of its border, it has installed radar surveillance and it has increased the number of border patrol agents to control the border. Although Mexico has increased its border control efforts, the southern border remains highly porous, as Mexican efforts have concentrated on creating controls throughout the country. These in-country checkpoints have led the migrants to take more evasive and

144 145

UN CMW 2011, supra note 49, p. 9 (recommendation f). Article 52 (IV) Ley de Migracion: Visitante Trabajador Fronterizo. 146 See also UN CMW 2011, supra note 49, p. 8, (par. 47). 147 Id., p. 7.

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more dangerous routes.148 Central American countries have, however, liberated their border controls. On 30 June 2005, El Salvador, Guatemala, Honduras and Nicaragua signed an agreement, which intended to create free movement of foreigners from the member states to the agreement in these countries.149 It, therefore, makes it easier for Central Americans to reach the Mexican border. Stricter United States border controls have not led to a decrease in irregular migration. Rather, it has pressured irregular migrants into resorting to the assistance of smugglers and into seeking more clandestine (often meaning more dangerous) routes. 150 Numbers support this claim: between 1998-2001, at least 1,500 migrants died on their way across the border, while more than 3,000 migrant bodies found on the U.S. Mexico desert border between late 1990s and 2005.151 Thus, stricter border control, to the extent that the United States has implemented them, do not necessarily contribute to preventing and detecting trafficking. On the other hand, neither does the opening of all borders, as there are still cases of Central Americans being trafficked to other Central American countries. It would be worth exploring what other kinds and more sophisticated kinds of border controls could be used that really focus on detecting trafficking, but that do not force irregular migrants into more dangerous routes and into the hands of smugglers and traffickers. Such initiatives should already start in the Central American countries, as the free movement not only allows migrants to travel more freely, but also allows trafficking and smuggling rings to more freely operate their business from Central America. Issues relating to trafficking victims in migration and asylum procedures The available migratory measures, such as temporary visa, are significantly underutilized and few trafficked victims have been recognized as in need of international protection. At the same time, deportations of (unidentified) trafficking victims are frequently carried out. Thus, while some measures are in place, trafficking victims do not always find the paths to enjoy the full benefits of these measures. A minimum of procedural safeguards is necessary to guarantee that the migratory and asylum protection measures afforded to the trafficking victim can be effectively enjoyed. Such procedural safeguards include access to legal assistance, NGOs, UNHCR and the IOM, access to information, access to medical care (including specialized physical and psychological care for trafficking victims) and access to a fair (appeals) procedure. According to most NGOs and international organizations, the most pressing problem in migration procedures in both the United States and Mexico is, the failure to identify trafficking victims.152 If trafficked victims are not recognized as such they are treated as
148 149

WOLA 2011, supra note 57, p. 5. Convenio de Creación de la Visa única Centroamérica para la libre movilidad de extranjeros entre las Repúblicas de El Salvador, Guatemala, Honduras y Nicaragua, 149/2008, 30 de junio de 2005, available at: http://www.oas.org/dil/AgreeAlpha-G.htm [last accessed: 21 December 2011]. 150 ILO Perspectives on Labour Migration 2003, supra note 23, p. 5; Cicero-Domínguez 2005, supra note 41, par. 50; 151 Anti-Slavery International 2011, supra note 1, par. 3.1; Cicero-Domínguez 2005, supra note 41, par. 49. 152 CIDH 2011, supra note 27, p. 35.

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irregular migrants and deported as soon as possible. As a result, they do not receive the necessary assistance and care, which leaves them vulnerable to re-trafficking and reprisals. Moreover, they will not have an opportunity to contribute in any criminal investigation or prosecution. Even when trafficking victims have been recognized, they do not always receive the necessary assistance and care or do not have access to the most basic procedural safeguard as provided by international human rights law and as incorporated in both Mexican and United States law. Particularly in Mexico, access to legal representation and to the assistance of NGOs appears to be a problem. Most victims are held in migration holding centres to which only few lawyers have access and even those lawyers who are authorised have reported difficulties with obtaining access to the facilities and their clients.153 Additionally, the Mexican migration and asylum procedures create other obstacles for the trafficking victim. Any appeal can take a very long time, especially when it involves an appeal before a court. Decisions taken by the administration on applications are not motivated. The first remedy available is to request a review by the same institution that took the first decision, which means a review by the supervisor of the person taking the first decision. This review is only a marginal test. UNHCR staff note that they have not seen one case in which the first decision was reversed by the supervisor. Most judges have no knowledge of migration and refugee law and procedures can take more than a year. During the procedure the migrant (including most trafficking victims) will be required to remain in the migration holding centre. Most migrants and victims therefore opt for an ‗oficio de salida‘, which allows them a short period to leave the country, or for ‗voluntary‘ repatriation.154 Moreover, there is little to no medical and psychological care available in the migrant holding centres, where trafficking victims might be amongst the migrants. 155 Also, repeatedly have complaints been registered about abuse by centre employees. Such abuses and inappropriate treatment undermine any efforts related to trying to convince victims to participate in a criminal trial, as it damages the confidence in officials and re-victimizes the trafficking victim. Conclusion Migrants are among the groups most vulnerable to trafficking in human beings. This has become abundantly clear from the migration and trafficking situation in Mexico and the surrounding region. Given the strong connection between migration and trafficking, it is remarkable that comparatively little attention has been dedicated to the availability of measures in the migration and asylum protection sphere. As far as migration measures have been taken to fight trafficking, they mostly saw to border control and deportation or (voluntary) repatriation. Other anti-trafficking strategies have largely focused on combating the crime through prosecution of the offender. However, there are several powerful tools available that could be utilized more or that could be implemented to pair with other tools in the fight against trafficking. Many of these migratory instruments
153 154

UNGA Special Rapporteur Migrants Bustamante 2008, supra note 23, p. 17. IOM Diagnostico 2011, supra note 85, p. 113. 155 UN CMW 2011, supra note 109, par. 49.

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could contribute to protection and prevention, as well as the prosecution element of antitrafficking strategies. First of all, trafficked victims could be eligible for international protection. Their asylum account could be related or unrelated to the trafficking situation, but in both cases will a protection status, albeit based on refugee or complementary protection, contribute to protection of the victim and prevention against re-trafficking. This protection benefit could be enhanced by providing a full residence permit for all these forms of protection, as that will allow the victim to have complete access to all medical care and be able to rebuild a life with work and housing. This makes victims less vulnerable. Also, victims that feel more secure tend to be more inclined to assist in a criminal investigation. However, in some cases additional protection measures might be necessary to protect the victim against reprisals of the trafficking ring. Secondly, Mexico and the United States already have the power to grant a temporary visa to trafficking victims. Although, these visas could be beneficial for both the protection of the victim and the prosecution efforts, certain elements undermine the positive effects that this visa could have. In any case in Mexico and the United States, this option appears highly underutilized, which leaves thousands of eligible victims unprotected and diminishes the possibilities of countering trafficking rings for failure to have victims participate in trials. On the other hand, experience has demonstrated that victims are more willing to participate in criminal investigations when their status is not conditioned on their participation. However, there are no indications that large numbers of persons not receiving a temporary visa have some other form of status that makes them more willing to participate in a trial. In addition, any temporal limitation prevents victims from feeling sufficiently secure to reintegrate in society, rebuild a life and therewith become less vulnerable. Also, lack of access to certain rights, such as the right to work, to find housing, to go to school, might contribute to victims remaining vulnerable to re-trafficking and re-victimization. Even if access to basic medical care is provided by law, some trafficking victims might be in need of specialized psychological care and other assistance to be able to deal with trauma and recover from their experiences. Thirdly, in some countries trafficking victims could be eligible for a visa on humanitarian grounds. These visas take many different forms (e.g. temporary, with or without the perspective of becoming permanent) and can be granted on an array of different reasons. The authority to grant a visa on humanitarian grounds is usually highly discretionary and strongly dependent on the present-day politics of the country of refuge. This makes it more difficult for trafficking victims to demonstrate their eligibility. Where these regularization and (international) protection options are provided for in United States and Mexican legislation, it appears that they are significantly underutilised. Consequently, numerous trafficking victims do no receive the protection they deserve, remain in a vulnerable position and even run the risk of re-trafficking and reprisals. Moreover, it means a loss of opportunities for the prosecution, as much information will evaporate. In case a country does not create certain residency and protection options, it would be worth exploring whether to adopt these migratory measures as they contribute to the protection of the victim, prevention of the crime and prosecution of the trafficker.

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Underutilisation of these measures can partly be subscribed to failures to identify trafficking victims and lack of procedural guarantees in the migration and asylum protection system. It is therefore crucial that states strengthen identification mechanisms and increase efforts to make sure that procedural safeguards are guaranteed. Such efforts should, at a minimum, include the training of government employees (especially migration officials and judges deciding on migration and asylum cases), access to lawyers, NGOs and UNHCR, access to information, and access to a fair procedure. Repatriation is considered by many to be the best available option for trafficked victims. However, this is of course highly dependent on the design of the repatriation process. As long as repatriation does not involve a plan of reintegration and empowerment of the victim, the risk of re-trafficking remains. In fact, in that case repatriation entails nothing more than the deportation of a victim, which can be considered an unfair punishment and possibly counterproductive to the combat against trafficking. Similarly, deportation of convicted criminals and gang members to Central America and Mexico by the United States, merely leads to a strengthening of gang (and trafficking) networks throughout the region if such deportation is not combined with a solid plan of reintegration of the deportee in a society of which he knows little more than gang structures and criminal activity. Before taking any decision on the best available option for the trafficked victim (which visa to apply for, whether to participate in a trial, whether to be repatriated), a recovery or reflection period is desirable. Such a period, will allow the victim to start processing the (order of) events that occurred and the information that has been provided. Unless the authorities maltreat the victim, such a period can also be helpful for the authorities to gain the victim‘s trust. Not only will the willingness of the victim to participate in a criminal prosecution most likely increase, but also will the victim be of more use as a witness when he or she feels more secure and has had time to reflect on the experiences he or she was subjected to. Moreover, a reflection period greatly contributes to true protection of the victim, as there is more time available to make a balanced decision. The possibility of resettlement of trafficking victims who are still at risk in the country of refuge, although technically available, does not appear to be a much used option in Mexico and the region, given that Mexico nor any of the Central American countries participate in this programme. Ideally, refugees eligible for resettlement are resettled in a country in which they have the least language and cultural barriers. As there are currently only two Spanishspeaking countries participating in the resettlement scheme, albeit both on the American continent, efforts to expand the program to other countries would be welcome. A migration mechanism of a different order, the option of providing more temporary work permits for in particular low-skilled labour, mainly contributes to the prevention of trafficking. Theoretically, it should diminish the vulnerability of migrants as it provides them with documentation, with which come more rights. However, if not expanded to a more regional scheme and if not combined with more intensified labour controls, the Mexican temporary permits will only partly be effective. The necessity for a more regionally coordinated approach equally applies to border control measures. Experience has demonstrated that very strict border control merely seems to put more pressure on migrants to resort to smugglers and increases their vulnerability to

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trafficking. On the other hand, opening the borders, as a measure in its own has also not led to the end of trafficking. In sum, there are several migratory and asylum protection measures still underutilised or unexplored, while others have not resulted in the desired effects. Considering the great vulnerability of migrants and given the probable positive effects these migration tools can have on the protection of trafficking victims, the prevention of the crime and the prosecution of the offenders, I believe it is time to start dedicating more attention to the possibilities of combating the crime of trafficking through a migration and asylum protection approach.

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UNHCR 2007 UN High Commissioner for Refugees, International protection for trafficked persons and those who fear being trafficked, 20 December 2007, ISSN 1020-7473, available at: http://www.unhcr.org/refworld/docid/4c247bc32.html [accessed 20 December 2011] UNHCR 2006 UN High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked, 7 April 2006, HCR/GIP/06/07, available at: http://www.unhcr.org/refworld/docid/443679fa4.html [accessed 20 December 2011] UNHCR 2003 UN High Commissioner for Refugees (UNHCR), The trafficking of women for sexual exploitation: a gender-based and well-founded fear of persecution? March 2003, ISSN 1020-7473 available at: http://www.unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=3e71f84c4&query=shearer%20d emir%20trafficking%20women [last accessed: 21 December 2011]. UNHCR 1992 UN High Commissioner for Refugees, Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees (Submitted by the African Group and the Latin American Group), 6 April 1992, EC/1992/SCP/CRP.6, available at: http://www.unhcr.org/refworld/docid/3ae68cd214.html [accessed 20 December 2011] USA TIP Report 2010 United States Department of State, Trafficking in Persons Report 2010, available at: http://www.state.gov/g/tip/rls/tiprpt/2010/index.htm [last accessed 22 December 2011] WOLA 2011 Washington Office for Latin America (WOLA), Migration, Development, and Human Rights in the United States and Mexico: Policy recommendations for both governments, September 2011, available at: http://www.wola.org/node/2018 [last accessed: 21 December 2011].

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United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984 (Vol. 1465) Council of Europe Convention on Action against Trafficking in Human Beings, Council of Europe Treaty Series No. 197, Warsaw 16 May 2005; http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=197&CM=8&DF=18/1 2/2011&CL=ENG [Last accessed: 21 December 2011]. Convenio de Creación de la Visa única Centroamérica para la libre movilidad de extranjeros entre las Repúblicas de El Salvador, Guatemala, Honduras y Nicaragua, 149/2008, 30 de junio de 2005, available at: http://www.oas.org/dil/AgreeAlpha-G.htm [last accessed: 20 December 2011]. 8 U.S.C.A. § 1101(a)(42)(A) 8 U.S.C. § 1185 (o) 8 U.S.C.A. § 1255 (I)(1)(C)(i) 8 U.S.C.A. § 1255 (I)(1)(C)(ii) 22 U.S.C.A. § 7102 (8) 22 U.S.C. § 7105 (b)(E)(ii)(II)(bb) 22 U.S.C. § 7105 (b)(E)(i) and (ii) INA § 101(a)(42)(A) Ley Para Prevenir y Sancionar la Trata de Personas, Nueva Ley DOF 27-11-2007 Ley de Migracion, Nueva Ley DOF 25-05-2011 Ley Sobre Refugiados y Protección Complementaria, Nueva Ley DOF 27-01-2011 Circular No. 011/2011: Circular por la que se instruye el procedimiento que debera seguir el Instituto Nacional de Migracion en la detencion, identificacion y atencion de personas extranjeras victimas del delito, DOF 07-06-2011 Article 29 Aliens Act 2000 TBV 2001/29

Websites http://www.unodc.org/unodc/en/treaties/CTOC/index.html http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12a&chapter=18&lang=en http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12b&chapter=18&lang=en http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e492706&submit=GO# http://www.comar.gob.mx/ http://www.unhcr.org/refworld/country,,,,MEX,4562d94e2,4d932e1bc,0.html

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http://www.ungift.org/knowledgehub/en/about/index.html http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12a&chapter=18&lang=en http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV9&chapter=4&lang=en.

Interviews 4 November 2011 4 November 2011 12 December 2011 20 December 2011 IOM Tapachula – Luis Flores UNHCR Tapachula – Hans Hartmark UNHCR Mexico D.F. – Alejandra Carilla IOM Mexico D.F. – Hélène LeGoff

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