A LAS HORAS DE ESTUDIO?

As yet, no country has emerged as a pioneer in responding effectively to human trafficking; most countries respond by trial and error and “on the run” (Gallagher & Holmes, 2008: 318). The lack of successful prosecutions in cases of human trafficking appears to be a global reality (Kruger, 2016: 54). As of 2010, of the 117 nations that signed the Palermo Protocol, 62 nations have yet to convict a single trafficker (O’Callaghan, 2012: 67). The US State Department reported that only 9,460 trafficking cases were criminally prosecuted globally in 2013, whilst only 135 civil cases were brought by victims against their traffickers in the US between 2003 and 2015 (Vandenberg & Skinner, 2015: 6). In 2014 it was reported that only four in ten countries had ten or more yearly convictions. Nearly 15% of these countries had no convictions (UNODC, 2014: 13).

The statistics below, from the US Department of State (2017: 34), provide a recent and insightful overview of estimates regarding prosecutions, convictions and the number of victims identified for the period 2009 to 2016. The estimates were derived from global law enforcement data provided by countries that contribute to annual data collection by the US Department of State. The fluctuation in aggregated data is ascribed to the hiddenness of the crime, shifting global events and government efforts, and the lack of standardised reporting structures at national levels. The statistics provided in parentheses relate to labour trafficking prosecutions, convictions and the number of victims identified.

Table 2.1: Global prosecutions, convictions and victims identified: 2009 to 2016

Year Prosecutions Convictions Victims identified

2009 5,606 (432) 4,166 (335) 49,105 2010 6,017 (607) 3,619 (237) 33,113 2011 7,909 (456) 3,969 (278) 42,291 (15,205) 2012 7,705 (1,153) 4,746 (518) 46,570 (17,368) 2013 9,460 (1,199) 5,776 (470) 44,758 (10,603) 2014 10,051 (418) 4,443 (216) 44,462 (11,438) 2015 19,127 (857) 6,615 (456) 77,823 (14,262) 2016 14,897 (1,038) 9,071 (717) 66,520 (17,465)

These numbers clearly pale against the estimated scope, nature and extent of the problem globally. Furthermore, with the estimated 404 642 victims identified over the eight-year period reflected and only 42 405 convictions resulting from 80 772 prosecutions, the argument that human trafficking is a low-risk crime becomes more vivid. Characterised as “a crime of vast impunity” (Kangaspunta, 2015: 82; UNODC, 2014: 52), the freedom with which traffickers continue to operate and the concomitant lack of prosecutions are indeed disconcerting (Vandenberg & Skinner, 2015: 6; UNODC, 2014; Murray, 2006: 126). The lack of positive case identification globally and the limited number of successful prosecutions are problematic when considering, first, the voluminous resources directed at combating human trafficking and, second, the estimates suggesting the enormity of the problem (Kangaspunta, 2015: 83–84; U.S. Department of State, 2015: 48; Farrel et al., 2014: 141).

The concept of ‘prosecution’ is in itself a complex endeavour and a multidimensional process that consists of a continuum of activities (Nair, 2010: 146). Nair begins with the identification of offenders and refers to activities such as registering the crime at the police station; investigating the crime in an organised, systematic and professional manner; investigating the crime from an ‘organised crime’ perspective; and prosecuting the offenders in a court of law by marshalling the evidence and ensuring that their conviction takes place. Prosecution also involves undertaking post- conviction measures, which include confiscation of assets, closing down the places of exploitation, paying compensation to the victims and ensuring that the offenders do not indulge in crimes thereafter. Prosecution includes several stakeholders, including investigators, supporting officials, supervisory officials, prosecutors, forensic scientists, psycho-social counsellors, lawyers, teachers, correctional service providers, executive magistrates, welfare officials, labour officials and judicial officers (Nair, 2010: 146).

Van der Watt and Van der Westhuizen (2017: 226-227) note a “less than favourable

track record” by criminal justice systems around the globe in addressing human

trafficking convincingly. Without a resolute criminal justice response, human trafficking will continue to be a low-risk, high-income activity for criminals (UNODC, 2014: 1). A constant adversarial relationship between the criminal justice system and trafficking networks exists, which Williams (2009: 423) describes as a “battle of wits”. The battle

of wits that Williams describes was also clearly evident between the ICS and TCS in this research. Echoing the idea of complexity in describing human trafficking, Gallagher and Holmes (2008) highlight eight essential elements of an effective national criminal justice system response to human trafficking. These are:

 A comprehensive legal framework, in compliance with international standards;  A specialist law enforcement capacity to investigate human trafficking;

 A general law enforcement capacity to respond effectively to trafficking cases;  Strong and well-informed prosecutorial and judicial support;

 Quick and accurate identification of victims along with immediate protection and support;

 Special support to victims as witnesses;

 Systems and processes that enable effective international investigative and judicial cooperation in trafficking cases; and

 Effective coordination among international donors.

The eight essential elements of an effective national criminal justice system, as highlighted by Gallagher and Holmes (2008), give credence to the argument by Nair (2010: 40) that human trafficking is a multidimensional threat which therefore requires a multidimensional response. Agility and the capacity for adaptability and flexibility are therefore vital components of the criminal justice response (Van der Watt & Van der Westhuizen, 2017: 227; Williams, 2009: 423). As an organised crime type, human trafficking involves multiple abuses and abusers and requires special skills and efforts to combat and prevent. Effective law enforcement requires for several counter- trafficking activities to be attended to simultaneously, which requires synergy and involvement of numerous role-players. Role-players include police; prosecution; welfare and health; agencies that run shelters, protective homes and children’s homes; civil society partners; and the media (UNODC, 2007: 6).

Verhoeven and Van Gestel (2011: 149-150) state that criminal investigation is always based on making choices and refer to the summative of those choices made by the investigation team and public prosecutor as the investigation strategy. The authors argue that the specific characteristics of human trafficking in the prostitution business require a specific method, which will ultimately influence the investigative strategy to be applied. The Human Trafficking Reference Guide for Canadian Law Enforcement

(2005: 21-25) refers to three major investigative approaches to human trafficking and a coexisting parallel approach. The three major investigative approaches are not mutually exclusive and include:

 Reactive – With this approach the victim serves as the point of departure into the investigation;

 Proactive – This approach focusses on generating intelligence through the use of, amongst others, unconventional or special investigative techniques; and

 Disruptive – This is a police-led option and is used when the first two options are not possible.

The coexisting parallel approach focusses on the financial investigation, where the golden rule is: “Follow the money and you will find the trafficker” (Human Trafficking Reference Guide for Canadian Law Enforcement, 2005: 25). Verhoeven and Van Gestel (2011: 149-150) point out that there is a lack of empirical research on the practice of criminal investigations into human trafficking, but highlight the notion that criminal investigations into human trafficking are more testing than other criminal investigations due to their tedious and complex nature. Stelfox (2009: 1-2) states that criminal investigation involves locating, gathering and using information to bring offenders to justice, or to achieve the objectives set for it by the police service. Stelfox continues by highlighting that the objectives of criminal investigation have changed so that they now also include a number of developments that effectively increase the complexity of this type of investigation, such as victim care, community reassurance, intelligence gathering, disruption of criminal networks and management of a wide range of crime risks. These developments as referred to by Stelfox (2009: 1-2) are some of the challenges encountered during a response to human trafficking for sexual exploitation. Verhoeven and Van Gestel (2011: 149-150) point to specific characteristics of human trafficking in the prostitution business. The first of these is the complex relationship between victim and perpetrator. The second is that, unlike other crimes, human trafficking is not a single or static incident, but more a process that involves multiple offenders and incident scenes. Trafficking operations are often organised in multiple layers and take different forms. This contributes to the challenges faced by investigators.

The Human Trafficking Reference Guide for Canadian Law Enforcement (2005: 7) highlights that the investigation and prosecution of trafficking offences are both complex for very similar reasons. These complexities include the need to rely on the services of interpreters and translators, the possible intimidation of victims and witnesses, corruption and, due to the nature of the crime, the frequent need to rely on evidence collected abroad. The prosecution of trafficking offences therefore poses new and difficult challenges for the judiciary. The principal challenge in prosecuting domestic sex traffickers or ‘pimps’ is described by Zack (2011: 1) as the act of removing victims from their present environment for a sufficient period, during which they can come to terms with the fact that they are victims and need assistance. Similarly, Verhoeven and Van Gestel (2011: 148) refer to a complex relationship that often exists between victims and perpetrators of human trafficking, where victims are often too afraid to file a report. Shrivankova (2006: 230) points out that police, immigration officials and the judiciary habitually fail to identify victims of trafficking. Misdiagnosis of human trafficking is evident when women trafficked for sexual exploitation are viewed as prostitutes and those trafficked into forced labour are treated as illegal migrants. Thus, when the victim as primary source of information is being treated as a criminal, the prospects of identifying, investigating and successfully prosecuting a case of human trafficking diminishes.

Human trafficking, as an organised crime that is mostly hidden and is complicated by subversive methods used by perpetrators, requires similar methods to be used by investigators (Albanese, 2011: 278). Special investigative techniques are endorsed by Article 20 of the UNTOC (2000b). These methods may include electronic or other forms of surveillance, undercover operations and controlled deliveries. With reference to these investigation techniques as alternative methods of obtaining evidence and information, Joubert (2013: 355) mentions the use of undercover police agents that join specific crime syndicates, the setting up of traps3 _{where the dealer is unmindful} that the ‘buyer’ of an illegal substance or service is actually a police official, and the interception of communications4 _{through wiretapping where suspects are unaware}

3 _{In South Africa, section 252A(1) of the Criminal Procedure Act 51 of 1977 authorises a law}

enforcement officer to make use of a trap or to engage in an undercover operation to detect, investigate and uncover the commission of a crime.

4 _{In South Africa, the Regulation of Interception of Communications and Provision of Communication-}

related Information Act 70 of 2002 makes allowance for such interception in specific circumstances, substantiated by reasonable grounds.

that their telephone communications are recorded and listened to by the police. Albanese (2011: 278) refers to these types of special investigative techniques as the characteristic difference between organised crime investigations and investigations of other crimes. As “tools”, the use of these special investigative techniques involves more planning, organisation and time-intensive effort than traditional investigative techniques (Albanese, 2011: 278). This is because these tools are applied to investigate criminal behaviour that also is better planned and organised than traditional crimes.

Coordination between role-players is, however, not a simple task. With reference to the continuing efforts to increase organisational capacity within social services that identify and refer victims of human trafficking, Wolf-Branigin, Garza and Smith (2010: 424) underscore the delay in positive outcomes caused by the challenges faced by social service practitioners when dealing with “entangled law enforcement and criminal

activity systems”. Stoll, Edwards and Mynatt (2010: 1) studied the inter-organisational

coordination and awareness in a non-profit ecosystem. These authors highlight how non-profit organisations grapple with the significant complexity added by having to cooperate across international borders and local jurisdictions. Furthermore, the mobile nature and jurisdictional dynamics of a trafficking scenario necessitate coordination amongst both non-profit organisations and legal establishments for service provision and the prosecution of traffickers. The authors make reference to one case study where 21 different organisations were enumerated that had to be involved in the identification, intervention and subsequent rescue of a 15-year-old victim of sex trafficking (Stoll et al., 2010: 1).

Zimmerman, Hossain and Watts (2011: 328) highlight that multilateral and cross- sector coordination in anti-trafficking strategies is not common. These authors argue that human trafficking is a violation that occurs over multiple geographic and legal boundaries, but actions are often targeted at the place of exploitation. Although law enforcement has led anti-trafficking efforts, trafficking is a fundamental issue for other sectors, such as immigration, labour and health, and development and trade (Zimmerman et al., 2011: 328). Human trafficking cannot be sufficiently addressed as a distinct issue (Danziger et al., 2009: 295) and requires a unified effort to conquer (Franco, 2015: 438).