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International Congress on Modern Day Slavery

Union Internationale des Avocats
(International Association of Lawyers)

"International Congress on Modern Day Slavery"

Statement by Mr. Andrew Gilmour, Assistant Secretary-General for Human Rights
Office of the High Commissioner for Human Rights New York Office

New York,28 June 2018

I am delighted to have been invited here today to talk to the Union Internationale des Avocats.

Because lawyers and human rights officers are natural partners.

After all, human rights norms and the rule of law are – together – fundamental to upholding the dignity of all people, stamping out abuses, and ensuring justice and accountability.

I believe our partnership is all the more crucial in the current global climate.  We at the UN are seeing a sustained attack, from many quarters, on human rights principles, human rights defenders, and human rights institutions.  But populists and authoritarians also have the rule of law in their sights – and are letting rip.

As you know better than I do, lawyers have often been criticized in the past for whatever real or imagined failings.  But what we now see is rather different.  Judges and lawyers are coming under attack for standing up for principles and people's rights – often being denounced as "enemies of the state" or "enemies of the people" as a result.

Such vituperation is especially apparent in the context of migration.  This is a topic of special relevance, with Chancellor Merkel, earlier today, telling the German Parliament that the issue of migration is the one that can make or break the European Union – and the first words of the cover of this week's Economist magazine are "Migration furore in America and Europe".

The human rights community must not be blind to the real fears of immigration in many countries.  Also to the fact that these fears (even if we are convinced they are exaggerated) have led to a surge in support for populist leaders who shamelessly talk about the so-called threats of migrants - smearing them in vile, racist and thoroughly dishonest terms in the process, and deliberately creating an atmosphere of hatred which may well lead to widespread violence.

While recognizing this reality, however, we cannot stand by and allow blatantly cruel policies to be carried out – policies wholly inimical to the values that many of us like to think we and our countries are supposed to stand for, including under the current negotiations for the UN Global Compact for Migration.

That's why I believe that our common values - human rights and the rule of law – link us together and provide powerful tools to repair this urgent crisis: a crisis of respect for human dignity.

Regarding the trafficking of migrants: As a hideous example of a contemporary form of slavery, it has come to the fore in recent reports of migrants caught in desperate conditions and being traded as human commodities.

While "trafficking" and "smuggling" are often used interchangeably in the context of migration, they are very different crimes. The main difference involves consent and exploitation – individuals who are smuggled have generally consented to the act and have paid the smuggler in exchange, while those who are trafficked are exploited against their will.

Trafficking in persons is a serious human rights abuse, and particularly affects those migrants who are in vulnerable situations.[1]  These are migrants who often travel alongside refugees, but who face considerable difficulties because they fall outside the protection provided under international refugee law.  What are known as "mixed movements" encompass various categories of persons, including refugees, asylum seekers and migrants travelling, mostly in an irregular manner, using similar routes and means of travel. People do not necessarily enter mixed movements as trafficked persons, but might become trafficked during their journey or when they reach a transit or destination country. While nominally entitled to human rights protection, the reality for migrants in vulnerable situations is that they often find themselves without protection, including access to lawyers, that would limit the risks of human trafficking.

The trouble with criminalising migration, with increasingly restrictive policies, is that migrants then feel compelled to undertake ever-more perilous journeys, to become more reliant on smugglers, exposing them to heightened risks of human rights violations, including some especially abusive methods of human trafficking.

We have seen migrants becoming victims of trafficking in Central America, along the Indian Ocean route, and prominently in Libya, just as we can find trafficked women across Europe.  Gruesome abuses including migrants being sold in slave markets, suffocating inside containers, or exposed to arbitrary detention, rape and torture, surely mean – since we witness them - that we have a shared responsibility to look at ways to address irregular migration, by prioritizing the dignity and protection of all migrants, regardless of their status.

Unfortunately, some measures that may be designed to counter trafficking can inadvertently lead to human rights violations and compel migrants to resort to more dangerous journeys.  For example, a recent study of nearly 4,000 mixed migrants from the Horn of Africa found that local law enforcement officials—including police, border guards and immigration officers—are among the main perpetrators of abuses towards migrants, including human trafficking, physical and sexual abuse, disappearances and even death[2].  Thus, an increased focus on law enforcement (as opposed to measures to protect potential victims of trafficking) is likely to heighten migrants' vulnerability to human rights violations, forcing them into the hands of the very traffickers we are supposed to be combatting.

So the goal is to find ways to prevent trafficking without exposing migrants to the additional risks of trafficking and other human rights violations. Given the precarious state of many regions mired in conflict, poverty, bad governance, and natural disaster – all exacerbated by climate change – we know for certain that millions of migrants are going to continue to feel compelled to move, even when faced with increasing risks.  No amount of brutality, child separation, or other forms of "deterrence" are going to alter this fact.

So we believe that all counter-trafficking measures should ensure the human rights of all migrants.  They should also take into account the unintended consequences of measures that may force migrants underground, thereby increasing the 'market' for those who prey on their vulnerabilities. This should include sanctioning and accountability for all actors involved in trafficking activities, as well as reviewing current migration policies and anti-trafficking measures to ensure that they do not criminalize migrants or add to their vulnerabilities. 

We believe there are important ways the legal community can help.

States need to be encouraged to take measures to enable all migrants to enjoy access to justice in the course of their migration, without discrimination on any basis.  This is clearly a heresy in some populist quarters, for whom both justice and non-discrimination appear to be anathema – but is nevertheless a foundation of any society based on rule of law.

Lawyers have a critical role to play in the provision of free legal and other assistance to migrants, including accessible information and interpretation services.  Many of us were deeply moved in January of last year, when the travel ban from several Muslim countries came into effect overnight and thousands of lawyers and others spontaneously flocked to airports all over this country to provide pro bono help.  Assistance of this nature and access to justice should enable migrants to understand their rights as well as relevant criminal, and labour justice procedures; also, to help them obtain due process, to seek asylum, and to access victim support services.

In addition, the legal community can ensure that traffickers are prosecuted more systematically and that policies that criminalise migrants are challenged, to ensure we are not closing pathways for safe migration.

The UN Human Rights Office's slogan for this year's 70th anniversary of the Universal Declaration of Human Rights is "Stand up for someone's rights today". 

This event today, and the presence and dedication to the subject by many of you, can be seen as a form of testimony to our collective will to stand up for human rights of all migrants -  including those who are compelled to move for a variety of complex reasons that may not fit squarely within our current understanding of who is justly entitled to "protection" or even compassion. 

All of them – like all of us – are entitled to their human rights, even if those rights were "lost" in their countries of origin, during their perilous migration journeys and the countries of destination.  When States fall short in meeting their obligations, as it is clear that they are increasingly doing, I hope we can all stand up and advocate for the rights of both migrants and victims of trafficking.

[1] See Global Migration Group (GMG), Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations, available at https://www.ohchr.org/EN/Issues/Migration/Pages/VulnerableSituations.aspx

[2] Danish Refugee Council, Regional Mixed Migration Secretariat for East Africa and Yemen, Weighing the Risks: Protection risks and human rights violations faced by migrants in and from East Africa, RMMS Briefing Paper: October 2017, available at http://regionalmms.org/images/briefing/RMMS%20Briefing%20Paper%205%20-Weighing%20the%20Risks.pdf