Home » Intersections » En-abling protection? Part 2

En-abling protection? Part 2

Last week we examined the intersection between human trafficking and disability; we argued that this issue requires further attention in research, policy and legislative terms to ensure that states meet their commitments to the UN Convention on the Rights of Persons with Disabilities (CRPD).  Now, we move to look at the application of the Convention to victims of trafficking.  This post also considers how states restrict the application of rights based on migration status and the consequential impact this has on the access to, and protection of, the rights of disabled victims of trafficking.  Finally, we consider the action that states need to take to improve the fulfilment of rights to this group.

The Convention contains a number of provisions relevant to victims of trafficking.  Firstly, Article 16 requires states take steps to protect those with disabilities from exploitation, violence and abuse.  Within this is the requirement that governments allocate assistance and support for disabled people to prevent exploitation, including education and information on exploitation.  Article 16 also recognises the additional discrimination which may be faced by disabled people on the basis of age and gender.  We argue that ethnic or community background should also be considered within this framework:  for example, the challenges faced by a disabled Roma woman may be significantly different from those faced by a white British disabled trafficking victim.

Central to these commitments is the principles of equality and non-discrimination, without which all other measures lose their impact.  Education and information can, on the face of it, seem to require no more than the distribution of leaflets; leaflets alone will provide limited protection.  For example, the US TiP report referred to the role that families can play in facilitating the trafficking of disabled people, for example, noting in their evaluation of Burundi, that families are “accepting payment from traffickers who run forced street begging operations.”  By addressing inequality and discrimination in society, governments can ensure a more effective and strategic approach to addressing the vulnerability of disabled people to trafficking and exploitation.  In other words, governments need to go beyond information sharing, to engaging the community to address the causes of inequality.

In cases of exploitation, Article 16 requires that, where exploitation has occurred, states must take “appropriate measures” to enable the recovery, rehabilitation and reintegration of disabled victims.  These measures must be tailored to the needs of disabled people, thus ensuring greater impact; for example, ensuring that individuals with mobility issues can access relevant services or that individuals with intellectual disabilities are able to consent to treatment.  Similarly, policies and programmes to reintegrate disabled trafficking victims need to consider the factors which facilitated the trafficking of the person in the first place.  Those directing reintegration efforts need to consider the relationships between the victim and, for example, their families and communities, among a range of issues.  Though not only applicable to disabled people, in situations where inequality and discrimination against disabled people are entrenched, returning them to the point from where they were trafficked without appropriate support mechanisms or indeed broader education with the community, is arguably leaving them vulnerable to re-trafficking.

For the criminal justice system to play an effective role in addressing human trafficking, states need to engage with Article 13 of the Convention.  It is not enough to ensure that courts are wheelchair accessible; rather, the involvement of victims in criminal justice proceedings should be present from the initial complaint.  This Article requires equal access to justice for those with disabilities “to facilitate their effective role as direct and indirect participants including as witnesses, in all legal proceedings, including at investigative and other preliminary stages”.  This process forms an important part of any holistic commitment to equality.  Research has shown ineffective access by all disabled people to the criminal justice system is a global problem for which states need to put in place robust and innovative measures.  By, for example providing advocates for those with intellectual disabilities or in ensuring that witness protection services take into account the particular needs of a disabled person.  We acknowledge the current lack of involvement for all groups of trafficking victims in the criminal justice process.  However, the fact a victim is disabled should mean more substantive, rather than less, efforts should be made as this group is even more likely to be marginalised from this process.

Central to the UN Convention on the Rights of Persons with Disabilities is the principle of equality and non-discrimination.  The Convention is designed to protect all persons with disabilities, including migrants, and refers to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in its preamble.  It recognises that persons with disabilities may face compounded discrimination on the basis of national, ethnic, indigenous or social origin.  The principles of non-discrimination and equality are considered customary international law and binding on all states regardless of signatory status on a specific treaty.  Other rights considered customary international law that apply to trafficking victims and transcend citizenship status, include: the right to recognition and equal protection before the law, and the requirement on states to protect the rights to just and favourable conditions of work.

Statelessness, irregular (often illegal) migration status may impede access to national and international human rights protections.  This vulnerability is compounded by states, enthusiastic to limit the provision of rights to non-nationals for a range of reasons, such as the obvious resources implications.

This perspective is not confined to states with somewhat dubious human rights records.  The UK’s approach to some of the most vulnerable individuals/groups within its borders – refugees, asylum seekers, victims of human trafficking and undocumented migrants – is frankly shameful.  For example, the Government is often quick to deport failed asylum seekers, despite evidence that such deportation will result in their torture.  Serious concerns have been raised about the detention of failed child asylum seekers in addition to concerns about access to healthcare, education, legal advice…and so on.

The international legal framework is clear that disabled migrant victims of trafficking and exploitation should be afforded multiple layers of protection.  However, as shown above, the presence of international human rights treaties is no real assurance of better rights protection as, all too often, the implementation of these treaties is weak.  But, for such treaties to function beyond aspiration (as Singapore seems to approach the CPRD) they need to be translated into effective legislative and policy terms by states.  Further, to effectively eliminate discrimination and inequality, the provision of rights protection needs to be extended to citizens and non-citizens alike, enabling all vulnerable groups to take advantage of these protections.

In conjunction with the commitment to end discrimination and inequality and as part of the specific commitment to address the needs of disabled people, governments need to consider the physical and mental consequences of exploitation, which can range from post-traumatic stress disorder to HIV.  It should also be emphasised that disability can happen at any time.  The protection of rights should not be focused on “inherently” being disabled.  For example: an individual may be vulnerable to trafficking as a result of say, having limited mobility; or an individual may develop limited mobility in the course of working in exploitative conditions; or an individual may develop limited mobility during, but not because of their exploitation.  The implications of all three scenarios require that protection mechanisms and services both exist and are also sufficiently flexible to respond to the specific needs of each person.  The International Organisation of Migration noted that:

… many migrant women are exposed to dangerous working environments or exploitative labour conditions, which may lead to occupational injuries and even permanent physical or psycho-emotional disabilities. Irregular migrant women and women working in less regulated labour sectors, such as domestic services and agriculture, are particularly at risk of incurring a form of injury or disability. In other sectors such as the chemical industry, hotels and restaurants, and the cleaning trade, women may be at an increased risk of health deterioration and illnesses. Inappropriate working postures, repetitive, monotonous work tasks or prolonged exposure to toxic substances can lead to physical and mental disabilities.

The principles that underpin human rights (interdependent, indivisible, inalienable) should be employed in the states’ approach to the issue of disability and trafficking.  In essence, what is undeniable is the need for a more effectively, holistic and targeted approach to the issue of trafficking and disability.  Inherent within this is a need for disaggregated data; this data needs to be considered more robustly by, for example, the US TiP report, which reports on disabled victims’ trafficking cases, but provides little substantial information on this issue.  The result would enhance the methodology behind the report and any policy development that stems from its evaluations.

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