A global scourge
Four White & Case partners discuss our work on human trafficking and modern-day slavery.
Why did White & Case decide to take on these projects?
Ian Forrester: We look for projects that correspond to our strengths—cross-frontier, complex matters that are genuinely legally tricky and make use of our global footprint—and have the chance of really making a difference.
The scope is barely believable: Millions of mostly women and children around the world—and no country is immune—are traded like commercial commodities across borders. It is a phenomenon that has existed for centuries. Our work will help to tackle the challenge of enforcement, especially in countries where there has been a history of institutional reluctance.
Ian Forrester, Retired Partner, former Global Pro Bono Practice Leader
When the opportunity came to help the United Nations Office on Drugs and Crime (UNODC) develop a global database of human trafficking cases, we sent an email to all our lawyers and within 48 hours we had something like 200 volunteers. For the research on protections for domestic workers in seven countries, Pro Bono Leaders were enthusiastic and signed up people in their offices very quickly. There was enormous interest.
How did you go about trying to find and summarize every criminal case in the world prosecuted under an anti-human trafficking statute?
Someera Khokhar: It was the largest pro bono project we've ever undertaken. We ran it as a normal cross-border transaction, holding conference calls, setting up centralized online resources to manage the documents, and appointing team leaders in each jurisdiction who worked with associates to set the research strategy and decide where to turn upon encountering a dead-end. I oversaw it globally. It represents the work of almost 200 associates and 30 partners—including both Laura and Owen—from 27 offices. The UNODC had a very comprehensive protocol for the case summaries, and we created a template for memos on our methodology in each of the 163 countries studied. A researcher from a university or non-governmental organization can take these memos and pick up where we left off, contacting local counsel or going to the courthouse itself.
Laura Sizemore: The fact that we could deliver in just a few months substantially more to the UNODC than anticipated is a testament to why firms like ours are important collaborators on international rule-of-law projects. Our associates and our wonderful library staff were dogged in pursuing every lead.
What did you find?
Someera: We found an astonishingly low level of prosecution under human trafficking statutes. We scoured the public records in 163 countries and found just over 600 cases. The laws are there but many countries do not have the appetite or the economic resources to prosecute. A few countries—Romania where we found more than 200 cases and Moldova where we found 60 are good examples—are showing they have the will and are prosecuting these cases. On the provincial level, in some countries we could not find the records, and in some cases we know the records just do not exist. Many cases are being caught in community-based courts and systems of justice and therefore fall outside the standard systems of record-keeping.
Laura: Human trafficking has been criminalized by 80 percent of the signatories of the UNODC protocol, but effective prosecution is a long way away. The question is are trafficking cases being prosecuted under other offenses, such as kidnapping or prostitution, or not being prosecuted at all? Broader research needs to be done to answer this question.
Is trafficking best attacked as a legal or societal problem?
Ian: The activity is illegal more or less in every country, but enforcement is difficult because the victims are, in effect, imprisoned by threats or literal bars and locks or by becoming tragically accustomed to their confinement. Enforcement requires that judges and police are assured it can bring professional advantage and that society favors it.
Owen Pell: How a society attacks this problem is similar to how societies deal with child labor issues. How do families value their daughters, especially within certain strata? Is it expected that they will be put to work with little regard for their working conditions?
Countries with high rates of trafficking are likely to have a high prevalence of child labor or poor labor conditions. Until there is broader social consensus, it will be hard to attack human trafficking through law enforcement or local leadership.
If you look at countries with better developed labor markets, such as those close to EU accession or a number of Central American countries, trafficking is more an issue of the legal system than of societal norms. In Romania, they are trying to bring themselves into line with EU regulations—society is against trafficking, the government is committed to living by certain standards, and the laws and regulations are dipping down into the society. But there you are dealing with organized crime.
Looking at the data this way might change how a non-governmental organization uses its resources or characterizes the degree of compliance with international standards.
Laura: Even in countries where trafficking clearly is not sanctioned on a societal level, we did not find a large number of cases prosecuting the specific crime of human trafficking. In some countries, this may reflect the involvement of organized crime and, as a result, effective law enforcement may be compromised. But it also reflects the vulnerability of the trafficking victims, as Ian mentioned, and the difficulty of bringing cases to trial.
Most trafficking victims are modern-day slaves. What did your research on protections for domestic workers show?
Laura: Of about 100 million domestic workers worldwide, the International Labor Organization (ILO) estimates that at least 15.5 million are children under the age of 18 and half of these are under age 15. More than 80 percent are women and girls. I was struck by how it is happening all around us—including throughout the United States—but there is a very low level of awareness in developed countries.
Most of the countries we looked at do not have legislation specifically covering domestic workers, and only three countries have ratified ILO Convention 189. Some countries specifically exclude domestic workers from their labor laws. Even where there is some level of protection for domestic workers, the more difficult issue is access, such as for migrant workers who suffer from language barriers or immigration concerns, and who are not aware of their rights.
Ian: Of course, it is not just workers in the home, but in many industries, who are potentially vulnerable. Those who do not have papers in order are often those who are oppressed. So helping to encourage practical rules about domestic employment is a way of getting more visibility for people who might otherwise be completely invisible.
How can this research turn into action?
Laura: Non-governmental organizations can use it to identify countries that do not appear to be prosecuting offenders under the specific crime of human trafficking.
Owen: If you overlay this research and other data on the prevalence of trafficking with those countries where major multinational corporations are present, those companies may be able to exert real influence on this dialogue. Companies want better workers. They could engage with non-governmental organizations to consider ways to attack the problem, including making clear to the government that a corrupt shadow economy is not good for business.
Someera: Law firms can help educate local communities and police about laws and rights. You may not be able to read, but you have rights. This can come from the local tribal leaders, from the elders and from organizations that are effective on the ground—whoever is influential can help educate.
As I read the case summaries, I thought it was heartbreaking. The idea of parents having to sell or give their child away is unthinkable, and made even more tragic when they know that child will have a high likelihood of being beaten. No one should have to face that.
To me it all comes down to economics. Why would you sell your children if you can afford to send them to school? There are ways we can help create opportunities and build local expertise, such as our work in support of microfinance institutions, or facilitating capital flows to social enterprises in various innovative ways, as well as the training we do for lawyers and judges in emerging democracies.
Ian: We have to identify the things we can do that will actually be useful to victims. Trafficking work should involve those who are recognized by society for achieving an impact on attitudes and practices. Law enforcers need the sense that they can be rewarded professionally for their efforts. The scope is barely believable: Millions of mostly women and children around the world—and no country is immune—are traded like commercial commodities across borders. It is a phenomenon that has existed for centuries. Our work will help to tackle the challenge of enforcement, especially in countries where there has been a history of institutional reluctance.
TOOLS TO FIGHT TRAFFICKING AND SLAVERY
A comprehensive global online database of human trafficking cases in 163 countries for the United Nations Office on Drugs and Crime
Referred by Lawyers Without Borders
Someera Khokhar, Partner, New York
A review of domestic labor laws in seven countries to determine alignment with International Labor Organization Convention 189
Referred by TrustLaw
Louise Mor, Partner, Paris
Laura Sizemore, Partner, Istanbul and Moscow