How we got here: the story of the Palermo protocol on trafficking

Interest in trafficking rose quickly with the fall of the Berlin Wall in 1989. There were a number of reasons for that. I do not want to be cynical, but I am convinced that one was that the victims changed from women of colour to white women, Eastern European women. So from ‘them’ to ‘us’. The other, I think, was that we didn’t know how fast we could rebuild the wall. Once the wall fell everybody could travel freely again. That was nice, but, of course, never the intention. And then there was the fear that we would be flooded not only by Eastern European migrants but also by the Russian mafia. Trafficking provided the perfect justification for an anti-migration agenda in the name of combating trafficking, literally under the banner of ‘if they can’t come, they cannot become victims either’. A lot of trafficking money was spent on rebuilding the Polish borders, for instance.

These factors helped push trafficking on the political agenda. It wasn’t so much that people became more concerned about the rights of sex workers or migrants, or about protecting sex workers from abuse. It was mostly that the argument of trafficking perfectly served a number of state interests, which became urgent after the fall of the Berlin Wall.

At the same time, there was the second feminist movement. That brought attention to sexual violence and the right of women to decide over their own bodies. And since the 1970s sex workers had started to organise – that was also a movement that came up. So on the one hand we had the sex workers’ rights movement claiming the right to choose the work you want to do and not be punished or criminalised for it, and on the other hand the anti-trafficking movement claiming the right to not be forced to do work you do not want to do. Both claims are about human rights, the freedom to choose your own profession and the right to be protected from forced labour, and both should be respected. That’s how we looked at it – in our view pro-rights and anti-violence were two sides of the same coin. So from our start we worked together with the Red Thread, the Dutch prostitutes rights organisation.

Preceding all of this was the question of what to call these sorts of abuses. Let me say it like this: if we had known the history and the inherent flaws of the concept of trafficking back then, we never would have used it. What we should have done was talk about forced labour, including forced sexual services, slavery-like practices and servitude. We should have used concepts that describe the living and working conditions in which people find themselves. These are concepts that are defined in international human rights law, and they’re kind of neutral. But at that time we weren’t aware of all that, so we ended up falling back on the 19th-century Victorian concept of trafficking with its focus on the purity and victimhood of women and the protection of national borders. In doing so, we unwittingly imported a highly biased concept, dividing women into innocent victims in need of rescue and guilty ones who can be abused with impunity, but also with racist and nationalistic overtones.

Despite efforts to counter these flaws, this inheritance continues to define the debate on trafficking today, as exemplified by the distinction the UN Trafficking Protocol makes between so-called ‘sexual exploitation’ and ‘labour exploitation’ and its focus on recruitment and movement rather than working conditions. Historically, trafficking has been used to control women’s sexuality and mobility and to justify oppressive measures against sex workers and migrants, rather than protecting their human rights. Already in the 1990s it had become clear that this was what was happening. So when we started the negotiations on the trafficking protocol, we were very much aware of the problems of the concept. And we tried to address them.

Joel: Did you enter into those negotiations believing that they were an opportunity, or did you mainly approach them with trepidation and anxiety? Was it already clear what the fault lines would be, or did those surprise you?

Marjan: There had already been a lot of discussion around the definition of trafficking by the time it reached the top of the international agenda. Is trafficking only about women and children? Does trafficking only takes place across borders or also happen within borders? Is trafficking only about forcing women into prostitution or is it also about abusive recruitment practices for domestic work and other kinds of labour? Is it only about recruitment or also about abusive and slavery-like working conditions? Pretty much all the questions and issues that played a role in the negotiations on the trafficking protocol were already points of contention in the larger political debate.

So there was a tremendous amount of confusion about what the concept was. And even if people agreed that the core of trafficking was coercion or force, there wasn’t consensus about what ‘force’ referred to, especially in relation to sex work. Did it refer to both abusive conditions of recruitment and work? Or did it refer solely to the way a woman came to be a prostitute, as a result of her own decision or forced by others (thus excluding women who consciously decided to work in the sex industry but who were subject to force and abuse in the course of their work)? And then some viewed prostitution itself as a violation of human rights akin to slavery. In this view no woman is able to voluntarily consent to sex work and any distinction made on the basis of consent or the will of the woman is meaningless.

We knew all these discussions were taking place, so we knew the dangers and we knew how much the concept was mixed up with the anti-prostitution and anti-migration agendas. We also knew it was sexist in the way that it linked the right of women to be protected against violence with their sexual innocence or purity. So we knew exactly what was wrong. Not everybody did perhaps, but the Global Alliance Against Traffic in Women (GAATW) – which was founded by Thai women groups and STV over the course of the 1990s – certainly did. A number of human rights organisations did, and sex worker organisations of course were very conscious of it from the very beginning.

Joel: Could the Palermo protocol have turned out differently? Or did it seem more or less fixed from the beginning, and what you got was roughly what you expected?

Marjan: We were not that optimistic. We knew what the problems were, and we knew how the concept was used against sex workers and immigrants. So we were well prepared in that sense. We had a number of aims and we organised across movements. We brought anti-trafficking, human rights and sex workers’ rights organisations and activists together, led by the International Human Rights Law Group and GAATW. I took part on behalf of GAATW and the Dutch Foundation Against Trafficking in Women where I worked at the time. The composition of this alliance was really important in that it was the first time that these three movements worked together in a joint lobby. Especially the combination of anti-trafficking and pro-sex workers’ rights groups and activists was radical, as it bridged the historical gap between the two movements caused by the persistent conflation of trafficking and sex work.

For the sex workers’ movement it was really a difficult position because they were clearly against the whole concept of trafficking. They had already suffered a lot from it. At the same time, we all knew that it was important to try to do as much damage control as possible. So the negotiations on the protocol were not like, ‘Oh, this is a beautiful chance.’ They were like, we already know the damage and we know that it can become even worse, so what can we do to control the damage and try to make the best of it? We prepared our documents together, went to the negotiations together, and lobbied together.

Like the states, NGOs were deeply divided on how trafficking should be defined – that is, what practices should be combated. While we made a clear distinction between trafficking and sex work and held that conditions of forced labour in all industries should be addressed, the other NGO block, led by the US-based Coalition Against Trafficking in Women (CATW), regarded all sex work as trafficking and wanted the protocol to combat prostitution as such.

By the time of the negotiations on the protocol, CATW had been around for a while and they had gained a lot of influence. I attended one of their conferences in New York at the end of the 1980s. At that point they hadn’t a clue about trafficking or the position and experiences of migrant women. They were mainly focused on violence against white women and pornography. I remember Andrea Dworkin, like a priestess sweeping a whole hall of women into hysterics about a woman being forced by her employer to look at Deep Throat, a famous porno film at that time. But during the 1990s they got a lot of money from conservative governments and became a rich, important, influential anti-prostitution lobby with chapters in a number of Asian countries.

If I remember correctly, they were not there for the first session of negotiations on the protocol, but from the second session onwards they were there. And from that time on, there were two opposed NGO-lobbying blocks. Our block, operating under the name of Human Rights Caucus, advocated a broad and comprehensive definition of trafficking with coercion as the core element. We wanted to include men as well as women and children, to go beyond prostitution and include all sectors of work in which people could end up under slavery and forced labour-like conditions, and to include both cross-border and internal trafficking. We wanted to go broad as we thought this might neutralise the problematic parts of the traditional concept of trafficking.

The other block, which next to CATW included among others the European Women’s Lobby and the French International Abolitionist Federation, wanted a protocol that defined all prostitution as trafficking, and that only applied to women and children. Significantly, they operated under the name of International Human Rights Network, kind of copying our name and adding to the confusion about who was who. Those were the two opposing positions, and the final definition is a clear compromise between those two positions. On the one hand it makes a clear distinction between sex work and trafficking. It covers women, men, and children, and includes all labour sectors rather than just the sex industry. On the other hand, “exploitation of prostitution and sexual exploitation” is singled out as separate and different from what came to be called ‘labour exploitation’ – that is forced labour, slavery-like practices and servitude in other industries. And we’ve seen the harmful effects of it.

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