The New Faces of Victimhood: Globalization, Transnational Crimes and Victim Rights

THE NEW FACES OF VICTIMHOOD STUDIES IN GLOBAL JUSTICE VOLUME 8 Series Editor Deen K. Chatterjee, University of Utah, ...

Author: Rianne Letschert | Jan van Dijk

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THE NEW FACES OF VICTIMHOOD

STUDIES IN GLOBAL JUSTICE VOLUME 8 Series Editor Deen K. Chatterjee, University of Utah, Salt Lake City, UT, U.S.A. Editorial Board Elizabeth Ashford, University of St. Andrews, U.K. Gillian Brock, University of Auckland, New Zealand Simon Caney, Oxford University, U.K. Michael Doyle, Columbia University, U.S.A. Andreas Follesdal, University of Oslo, Norway Carol Gould, Temple University, U.S.A. Virginia Held, CUNY, U.S.A. Alison Jaggar, University of Colorado, U.S.A. Jon Mandle, SUNY, Albany, U.S.A. Onora O’Neill, The British Academy, U.K. Sanjay Reddy, Columbia University, Barnard College, U.S.A. Henry Shue, Oxford University, U.K. Kok-Chor Tan, University of Pennsylvania, U.S.A. Leif Wenar, University of Sheffield, U.K. Veronique Zanetti, University of Bielefeld, Germany Aims and Scope In today’s world, national borders seem irrelevant when it comes to international crime and terrorism. Likewise, human rights, poverty, inequality, democracy, development, trade, bioethics, hunger, war and peace are all issues of global rather than national justice. The fact that mass demonstrations are organized whenever the world’s governments and politicians gather to discuss such major international issues is testimony to a widespread appeal for justice around the world. Discussions of global justice are not limited to the fields of political philosophy and political theory. In fact, research concerning global justice quite often requires an interdisciplinary approach. It involves aspects of ethics, law, human rights, international relations, sociology, economics, public health, and ecology. Springer’s new series Studies in Global Justice up that interdisciplinary perspective. The series brings together outstanding monographs and anthologies that deal with both basic normative theorizing and its institutional applications. The volumes in the series discuss such aspects of global justice as the scope of social justice, the moral significance of borders, global inequality and poverty, the justification and content of human rights, the aims and methods of development, global environmental justice, global bioethics, the global institutional order and the justice of intervention and war. Volumes in this series will prove of great relevance to researchers, educators and students, as well as politicians, policy-makers and government officials. For further volumes: http://www.springer.com/series/6958

The New Faces of Victimhood Globalization, Transnational Crimes and Victim Rights

Edited by

RIANNE LETSCHERT Tilburg University, The Netherlands

JAN VAN DIJK Tilburg University, The Netherlands

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Editors Dr. Rianne Letschert International Victimology Institute (INTERVICT) Tilburg University PO Box 90153 5000 LE Tilburg Netherlands [email protected]

Prof. Jan van Dijk International Victimology Institute (INTERVICT) Tilburg University PO Box 90153 5000 LE Tilburg Netherlands [email protected]

ISSN 1871-0409 ISBN 978-90-481-9019-5 e-ISBN 978-90-481-9020-1 DOI 10.1007/978-90-481-9020-1 Springer Dordrecht Heidelberg London New York © Springer Science+Business Media B.V. 2011 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

Preface

This volume originated from a shared interest of different senior and junior members of Tilburg Law School in analysing victimization by crime from different angles. When the idea came up to combine our mutual research interests, it became clear that in each and everyone’s research field, processes of globalization increasingly posed new complexities and questions that have not yet been sufficiently addressed. Our discussions started somewhere in 2007, leading ultimately to a common theme of globalization, transnational crimes and victim’s rights. The authors are all research fellows or staff members of the International Victimology Institute, a research institute in The Netherlands focusing on interdisciplinary research on victims that can contribute to a comprehensive, evidence-based body of knowledge on the empowerment and support of victims of crime and abuse of power. We thank our colleagues for their willingness to cooperate in this book project and their patience in awaiting the final result. This volume is part of the series ‘Studies in Global Justice’ of Springer Publications. We thank the series editor, Prof. Deen Chatterjee as well as the independent peer reviewers for their thoughtful and insightful remarks to the first draft of the manuscript. We furthermore express our appreciation to Neil Olivier and Diana Nijenhuijzen from Springer Publishing in assisting us in the final preparation of the book. Lastly, we wish to thank Hedwig Suurmeijer for the English editing of the book. Tilburg, The Netherlands

Rianne Letschert Jan van Dijk

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Contents

Part I

Introductions and Overviews

1 New Faces of Victimhood: Reflections on the Unjust Sides of Globalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rianne Letschert and Jan van Dijk

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2 Global Governance and Global Crime – Do Victims Fall in Between? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rianne Letschert and Marc Groenhuijsen

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3 Human Security and the Emergence of a Global Conscience . . . . . . . . . . . . . . . . . . . . . . . . Ralf Bodelier

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Part II

Victims of Transnational Crimes

4 Trafficking for Sexual Purposes as a Globalized Shadow Economy: Human Security as the Tool to Facilitate a Human Rights Based Approach . . . . . . . . . . . . . . . . . . Conny Rijken and Renée Römkens

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5 Transnational Organized Crime, Civil Society and Victim Empowerment . . . . . . . . . . . . . . . . . . . . . . Jan van Dijk

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6 Victims of Environmental Pollution in the Slipstream of Globalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jonathan Verschuuren and Steve Kuchta

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Part III Victim Protection in Cyberspace 7 The Challenge of Identity Theft in Multi-Level Governance: Towards a Coordinated Action Plan for Protecting and Empowering Victims . . . . . . . . . . . . . . Nicole van der Meulen and Bert-Jaap Koops

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Contents

8 International (Cyber)Stalking: Impediments to Investigation and Prosecution . . . . . . . . . . . . . . . . . . . Suzan van der Aa

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9 Digital Tools: Risks and Opportunities for Victims: Explorations in E-victimology . . . . . . . . . . . . . Corien Prins

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Part IV Victims of Conflicts and Wars 10 Al Qaeda and Vicarious Victims: Victimological Insights into Globalized Terrorism . . . . . . . . . . . . . . . . . . . . . . Antony Pemberton 11 Protecting the Victims of the Privatization of War . . . . . . . . . Willem van Genugten, Marie-José van der Heijden, and Nicola Jägers 12 Globalization and Victims’ Rights at the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jo-Anne Wemmers and Anne-Marie de Brouwer Part V

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Conclusion

13 Reconstructing Victim-Centered Justice on a Global Scale . . . . Jan van Dijk and Rianne Letschert

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References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contributors

Suzan van der Aa Senior researcher at INTERVICT, Tilburg University, Tilburg, The Netherlands, [email protected] Ralf Bodelier Research Fellow at Intervict, Valentijnstraat 19, 5014KE Tilburg, [email protected] Anne-Marie de Brouwer Tilburg University, Department of Criminal Law, PO Box 90153, 5000 LE, Tilburg, The Netherlands, [email protected] Jan van Dijk International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands, [email protected] Willem van Genugten School of Law, Tilburg University, 5000 LE, Tilburg, The Netherlands, [email protected] Marc Groenhuijsen International Victimology Institute (INTERVICT), Tilburg University, 5000 LE, Tilburg, The Netherlands, [email protected] Marie-José van der Heijden School of Law, Tilburg University, 5000 LE, Tilburg, The Netherlands, [email protected] Nicola Jägers School of Law, Tilburg University, 5000 LE, Tilburg, The Netherlands, [email protected] Steve Kuchta University of Connecticut, Storrs, Connecticut, USA, [email protected] Bert-Jaap Koops TILT – Tilburg Institute for Law, Technology, and Society, Tilburg, The Netherlands, [email protected] Rianne Letschert International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands, [email protected] Nicole van der Meulen HEC – The Centre of Expertise, The Hague, The Netherlands, [email protected]

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Contributors

Antony Pemberton Senior researcher and research coordinator at INTERVICT, Tilburg University, PO Box 90153, 5000 LE Tilburg, The Netherlands, [email protected] Corien Prins Professor of Law and Informatisation at TILT, Tilburg University; council member Scientific Council for Government Policy (WRR), The Hangue, The Netherlands, [email protected] Conny Rijken Associate Professor, Senior Researcher INTERVICT, Department of European and International Public Law, International Victimology Institute/Tilburg University Law School, PO Box 90153, 5000 LE, Tilburg, The Netherlands, [email protected] Renée Römkens Professor of Interpersonal Violence/Victimology – INTERVICT International Victimology Institute/Tilburg University Law School, PO Box 90153, 5000 LE Tilburg, The Netherlands, [email protected] Jonathan Verschuuren Intervict and the Tilburg Sustainability Centre, Tilburg University, PO Box 90153, 5000 LE Tilburg, The Netherlands, [email protected] Jo-Anne Wemmers École de criminologie, Université de Montréal, C.P. 6128 succursale Centre-ville, Montréal, Québec, Canada, H3C 3J7, [email protected]

About the Authors

Dr. Suzan van der Aa (LL.M.) studied (criminal) law at Tilburg University. Since 1 September 2005, she has worked as a PhD Researcher at the International Victimology Institute Tilburg (INTERVICT). The topic of her thesis is “stalking in the Netherlands.” Furthermore, she is researcher in several EU funded projects on victims of crime in general and violence against women. As of June 2010, she will continue her work at INTERVICT as Assistant Professor. Ralf Bodelier (LL.M.) obtained a bachelor’s degree in history at Fontys University of Applied Sciences, and a master’s degree in theology at Tilburg University. For twelve years he lectured at The Academy for Journalism in his hometown Tilburg. He worked as a foreign correspondent in Africa and Eastern Europe for Dutch public radio and various national newspapers. Bodelier published seven books in Dutch and one in English: Cosmopolitans in 2008. Currently he runs a discussion center on global issues, and a small-scale publishing house. Dr. Anne-Marie de Brouwer is Associate Professor of (International) Criminal Law at the Department of Criminal Law of Tilburg University, the Netherlands, and Senior Research Fellow at the International Victimology Institute Tilburg (INTERVICT). Previously, she was Associate Legal Officer at the Women’s Initiatives for Gender Justice in The Hague. She is Chair of the Mukomeze Foundation, which aims to improve the lives of women and girls who survived sexual violence during the Rwandan genocide. Professor Dr. Jan van Dijk was Director of the Research and Documentation Centre of the Dutch Ministry of Justice. Between 1998 and 2005 he worked for the United Nations in Vienna and Turin. He acted as President of the World Society of Victimology between 1997 and 2000. In 2008 he received the Sellin-Glueck Award of the American Society of Criminology for his lifelong contribution to international criminology and victimology. He currently holds the Pieter van Vollenhoven chair in victimology and human security at Tilburg University (the Netherlands). Professor Dr. Willem van Genugten studied law and philosophy at Nijmegen University in the Netherlands. He graduated with distinction and cum laude respectively. He is currently Professor of International Law at Tilburg University, the

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About the Authors

Netherlands; Visiting Professor at Minnesota Law School (annually since 2000); Extraordinary Professor of International Law, North-West University, South Africa; chair of the Standing Committee on Human Rights of the Dutch Government; member of the ILA Committee on the Rights of Indigenous Peoples, and Senior Research Fellow at INTERVICT. Professor Dr. Marc Groenhuijsen is Professor of Criminal Law, Criminal Procedure and Victimology at Tilburg University in the Netherlands. In 2005, he became the Founding Director of INTERVICT, the International Victimology Institute Tilburg. He has published widely on various victims’ issues. Since 2009, he is President of the World Society of Victimology, member of the Board of Directors of the International Organization for Victim Assistance, and member of the Board of Directors of the International Society for Criminology. He also serves as a part-time judge in the Court of Appeal in Arnhem. Marie-Jose van der Heijden (LL.M, M.Phil) is Junior Legal Researcher and Lecturer at Tilburg University. She holds master’s degrees in law and philosophy. She is writing her PhD thesis on “Transnational Corporations and Human Rights Liabilities: linking standards of public international law to Dutch civil litigation procedures.” In 2009, she was Research Associate of the Centre for Commercial Law Studies at Queen Mary, University of London. Her interests are in the areas of international economic law, including investment law; corporate social responsibility; self-regulation; and commercial litigation. Dr. Nicola Jägers is Associate Professor at the department of European and International Law, Tilburg University in the Netherlands. She holds a master’s degree both in history and law and obtained her PhD at the Netherlands Institute of Human Rights (SIM) in 2002. The dissertation was published as a book entitled Corporate Human Rights Obligations: in search of accountability (Intersentia, 2002). She has published numerous articles and book contributions notably on the issue of corporate responsibility and the position of other non-state actors such as NGOs in international (human rights) law. Currently she is Executive Editor of the Netherlands Quarterly of Human Rights, and a member of the board of the Centre of Research on Multinational Corporations. She is also on the board of the Dutch School of Human Rights Research and the Dutch branch of the International Law Association. Professor Dr. Bert-Jaap Koops is Professor of Regulation & Technology at the Tilburg Institute for Law, Technology, and Society (TILT), and Senior Research Fellow at the International Victimology Institute Tilburg (INTERVICT). From 2005-2010, he was a member of De Jonge Akademie, a young-researcher branch of the Royal Netherlands Academy of Arts and Sciences. His main research interests are cybercrime, cyber investigation, DNA forensics, privacy, data protection, identity, digital constitutional rights, code as law, human enhancement, and regulation of bio- and nanotechnologies.

About the Authors

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Dr. Steve Kuchta is Researcher of Human Security/Environmental Justice at INTERVICT, Tilburg University, the Netherlands, and Doctoral Candidate of Economics at the University of Connecticut, USA. His main research interests are environmental justice and environmental rights, and their intersections with economic rights, environmental law, and access to remedies in environmental grievances. He also works on the economic implications of regulatory frameworks in pharmaceuticals and intellectual property rights. Dr. Rianne Letschert is Deputy Director of the International Victimology Institute Tilburg (INTERVICT) and Associate Professor of International Law and Victimology. She is appointed member of the Netherlands Helsinki Committee, and Editor of the journal Security and Human Rights. In 2010, she was Research Fellow at the Lauterpacht Centre for International Law of Cambridge University (UK). Her latest book publication was on victims of terrorism (with Staiger and Pemberton, Springer, 2009). Furthermore, she co-edited a volume on developing victimological approaches to international crimes (Intersentia, 2010). Dr. Nicole van der Meulen received both her bachelor of arts and her master of science degree in political science with a specific focus on international relations and comparative politics. After the completion of her degrees, Van der Meulen commenced her PhD dissertation research on financial identity theft in the United States and the Netherlands. Besides her dissertation research, Van der Meulen has also completed project research for the National Infrastructure Cyber Crime (NICC) and the Future of Identity in the Information Society (FIDIS), which is a Network of Excellence (NoE) supported by the European Union. Dr. Antony Pemberton is Senior Researcher and Research Coordinator at the International Victimology Institute (INTERVICT) of Tilburg University. Dr. Pemberton is a social scientist, whose main research interests include the psychology of victims in the criminal justice system, interdisciplinary research into victim-related justice processes and issues concerning victims of international crimes. Dr. Pemberton, in cooperation with Dr. Rianne Letschert, developed and was steering group coordinator of the Developing Assistance to Victims of Terrorism project which INTERVICT and partners undertook on behalf of the European Commission. The project resulted in the recent Springer publication Assisting Victims of Terrorism and his chapter draws heavily on the research conducted as a part of this project. Professor Dr. Corien Prins holds a degree in law as well as Slavic languages and literature from Leiden University, the Netherlands. Currently, she is Professor of Law and Informatization at Tilburg University with the Institute for Law, Technology, and Society (TILT). She combines this position with being a member of the Dutch Scientific Council for Government Policy (WRR) in The Hague. She headed the TILT research institute from 1996 until 2008. Prins is a member of the Royal Netherlands Academy of Arts and Sciences (KNAW) and Senior Research Fellow at INTERVICT.

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About the Authors

Dr. Conny Rijken is Associate Professor at Tilburg University and Senior Research Fellow at INTERVICT. Dr. Rijken is specialized in the fields of European Criminal Law and trafficking in human beings, and has published widely on these subjects. These include the book Trafficking in Persons, Prosecution from a European Perspective (Asser, 2003). Besides teaching both undergraduate and postgraduate courses, she has been intimately involved in research in the international arena. Some of her more notable recent assignments include the establishment of Joint Investigation Teams, raising awareness in the Judiciary on Trafficking in Human Beings, and the certification of the prostitution sector in the Netherlands. Currently she is conducting research for the European Commission on combating THB for labour exploitation. Professor Dr. Renée Römkens is Professor of Interpersonal Violence, notably violence in the private domain. She has a BA in law, an MA in criminology (Radboud University Nijmegen, 1980) and a PhD in psychology (with honors). Between 2000 and 2005 her academic career was based in the United States (Visiting Fellow at New York University Law School/Program of Global Law, Visiting Professor at Columbia University of New York – Institute for Research on Women and Gender). Her work focuses on socio-legal issues regarding victimization, gender, multiculturalism. Her theoretical work addresses the role of law, more specifically the role of the criminal legal system when addressing victimization in the private domain, and on the dilemmas and unintended consequences that are invoked when calling upon law to counteract violence against women and children. Professor Dr. Jonathan Verschuuren is Professor of International and European Environmental Law at Tilburg Law School. He currently serves as the Vice Dean. Verschuuren is also a faculty member of INTERVICT and the Tilburg Sustainability Center, and Honorary Professor at North-West University, South Africa. His research focuses on the interplay between international, regional, and national environmental law on such topical issues as climate change, biodiversity, and water management. Professor Dr. Jo-Anne Wemmers obtained her PhD from the University of Leiden (the Netherlands). Presently, she is a Professor at the School of Criminology of the Université de Montréal (Canada) as well as Head of the Research Group Victimology and Restorative Justice at the International Centre for Comparative Criminology. Professor Wemmers has published many articles and books in the area of victimology, including Introduction à la victimologie (Les Presses de l’Université de Montréal) and Victims in the Criminal Justice System (Kugler Publications). Former Secretary General of the World Society of Victimology, she is currently Editor of the International Review of Victimology as well the Journal international de victimologie.

Part I

Introductions and Overviews

Chapter 1

New Faces of Victimhood: Reflections on the Unjust Sides of Globalization Rianne Letschert and Jan van Dijk

1.1 Introduction In the UN Secretary-General’s report endorsing the findings of the High-level Panel on Threats, Challenges, and Change, six key security challenges are listed as the foremost challenges of the contemporary age. These are: economic and social threats, including poverty, infectious disease, and environmental degradation; interstate conflict; internal conflict, including civil war, genocide, and other large-scale atrocities; nuclear, radiological, chemical, and biological weapons; terrorism; and, last but not least, transnational organized crime. The panel concluded that now “threats are from non-State actors as well as States, and to human security as well as State security.”1 The newly coined umbrella concept of human security stresses the need of putting the interests of people rather than of states in the center of attention and it highlights the interrelationships between the threats to personal security such as by global crimes and other security risks such as those of extreme poverty or health. The individual human being is not only defined in terms of his or her vulnerabilities, but also as a person that should be empowered to fend for him or herself. A central feature of the debate on human security is the call for preventive or remedial action from the world community against all kinds of threats to the core of people’s lives (“responsibility to protect”).2 According to the victims’ movement, criminal justice systems across the world should serve the interests of those directly harmed by crime besides or even before R. Letschert (B) International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 United

Nations (2004). A More Secure World: Our Shared Responsibility, Report of the Highlevel Panel on Threats, Challenges, and Change, p. 15, Available through http://www.un.org/ secureworld/report.pdf. 2 It goes beyond the scope of this chapter to synthesize the many discussions relating to this concept. For critiques on the usefulness of the concept in providing a basis for substantive change of the system of international security, we refer to a recent contribution by Ryerson Christie (2010).

3 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_1,

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those of the state. From this perspective, key victim-centered functions of criminal justice are access to justice, information, recognition and reparation. Furthermore, victims are entitled to social support to be reinstored into their former life. Over the past 20 years the victims’ movement has had considerable impact on policy. On 15 November 2006, Queen Elizabeth of the United Kingdom, for example, announced in her annual speech to Parliament: “My government will put victims at the heart of the criminal justice system.”3 In the same year the Dutch Minister of Justice issued a white paper on the implementation of his victim policies called “Victims in the Center.” A landmark for the global reform movement was the United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the UN General Assembly in 1985. In this document the rights and interests of victims of abuse of power were only marginally addressed. This omission was corrected by the subsequent Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted in 2005 by the UN Commission on Human Rights. Together these two documents have set the global standard for the treatment of victims in national and emerging international criminal law. They could be seen as important operationalizations of the concept of human security in the domain of criminal justice. Improvements in procedural rights of crime victims are embedded in the legal traditions and structures of domestic criminal justice systems. Where domestic arrangements of criminal justice are replaced or supplemented by international criminal law, existing provisions for crime victims must be transferred to these new settings. In the meantime, globalization is changing the landscape of both crime and criminal justice. Crime is rapidly being internationalized. The increasingly international nature of many forms of crime poses a major challenge to domestically oriented systems of criminal justice. Inadequate arrangements for judicial cooperation allow perpetrators of global crimes to escape prosecution. The failure to bring transnational perpetrators of crime to justice leaves victims of such crimes without legal recourse. If such crimes are brought before a court, rights of victims are logistically difficult to enforce. On the positive side, international criminal law is expanding and provisions for victims are no longer overlooked. The United Nations, for example, has instituted international funds for victims of torture and is currently discussing the creation of a fund for victims of terrorism, and the International Criminal Court has set up a Trust Fund for victims of international crimes. Numerous international NGOs struggle to offer relief and support for a broad range of crime victims such as those of human trafficking or victims of international crimes. In this book we will bring into focus these and other, often contradictory, implications of globalization for the protection and support provided to victims of crime across the world. The leading theme is the relationship between processes of globalization, emerging

3 Cited in: Hall, M. (2009). Victims of Crime; Policy and Practice in Criminal Justice, Cullompton,

Willan Publishing.

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threats to human security and the development of new national and international arrangements to protect and empower actual victims.

1.2 Defining Globalization Globalization is a complex phenomenon that takes many different forms. It is far from a recent phenomenon and is therefore difficult to pinpoint in time.4 Academic analyses and social movements against globalization started in the last decade of the twentieth century. For the purpose of this book it is defined as the growing interconnectedness of communities across the world resulting in interdependencies between actors operating at long distances from each other in multiple spheres of life.5 Globalization has in recent decades had two main material drivers. New techniques of communication from computing to satellites have made information available across the globe almost instantaneously, with cyberspace as its most dramatic manifestation. Parallel to this, new forms of mass transportation such as high speed trains and budget airlines have facilitated cross-border mobility of people. These factors have reinforced each other. Together they acted as catalysts of political transformations such as the fragmentation of the global communist bloc and the emergence of a multi-polar world order. Within Europe, opportunities for legal or illegal cross-border travel between the East and the West have expanded. Within the European Union border controls have practically been abolished for residents of the Member States. These processes have created new opportunities for entrepreneurial criminals who can now with slightly adjusted modus operandi prey upon potential victims outside their home states. Organized crime groups can more easily than ever branch out to new hunting grounds: “The World is yours, select your country, Tony,” says a lead character in a TV series about the life of a mafia group in New Jersey.6 Since criminal justice systems are still largely organized within the framework of the territorially restricted nation state, internationally operating criminals can often victimize world citizens with near impunity. Globalization is not just a matter of improved means of communication and the lifting of borders. It has gone hand in hand with neo-liberal ideologies propagating

4 Beitz, C.R. (2005). Cosmopolitanism and Global Justice, The Journal of Ethics, 9, 11–27, notes as follows: ‘First, one should not think of globalization as a development peculiar to the latetwentieth century. However it is measured – whether by the volume of trade, capital flows and labor migration, by the integration of goods and capital markets, or by the sensitivity of domestic life to economic transactions elsewhere – economic globalization dates at least from the nineteenth century.’ See further O’Rourke, K.H. & Williamson, J.G. (1999). Globalization and History: The Evolution Of A Nineteenth-Century Atlantic Economy, Cambridge, MIT Press. 5 See also: Aas, K.F. (2007). Globalization and Crime, London, SAGE. 6 Cited in Siegel, D. & Nelen, H. (2008) (eds.). Organized Crime: Culture, Markets and Policies, New York, NY, Springer.

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the elimination of obstacles to trade and to international financial transactions.7 Economically, decisions about the production, consumption and trade in goods and services are largely in the hands of multinational companies whose main concern is often profit rather than the impact of the globalized economy on specific localities and populations. Globalization has generally increased inequalities both across countries or regions and between social strata within them. In several places women seem to have been especially heavily affected by globalization (“feminization of poverty”). One of the starkest manifestations of globalization’s unjust sides is the large-scale migration of women and children from countries negatively affected by globalization to countries with booming economies. Lured by the prospect of a better life, such migrants often fall victim to practices of criminal exploitation in the liberalized sex or textile industries in the developed world. By the criminal justice systems in developed countries this category of victims is often not recognized as such but dealt with harshly by migration authorities or the police. These twice victimized persons belong to the core of a growing migratory underclass in the metropoles of the Western world. Globalization has not only changed the dynamics of economic, including criminal-economic life but has also fundamentally changed the role of state institutions. Globalization is said to have led to a “withering of the state.”8 In reference to the need of retaining competitiveness on global markets, governments have reduced labor costs by stripping welfare-type provisions.9 In many countries governments have also relegated core state functions to supposedly more efficient actors in the private sector. Examples of such transfers from the public to the private sphere are forms of policing such as surveillance and ancillary services related to military operations. At the same time national states have relegated mandates to supranational structures such as the European Union and to international organizations such as those belonging to the UN system (World Bank, IMF and the various branches of the UN). The emergence of these global or regional arrangements is accompanied by the explosive growth of powerful international NGOs such as, for example, Amnesty International, International Crisis Group, Greenpeace, Human Rights Watch and Transparency International. The Westphalia nation state, then, is beleaguered from all sides. It has been incrementally eroded both from within (down-sizing and privatization) and from outside (internationalization of governance). Paradoxically the hypothesis of the “withering state” is not directly applicable to the domain of criminal justice. Globalization has generated its own countervailing forces in the cultural and political spheres. Culturally, globalization is diagnosed as generating a society preoccupied with 7 Passas,

N. (2000), ‘Global Anomie, Dysnomie, and Economic Crime: Hidden Consequences of Neo-liberalism and Globalization in Russia and the World’, Social Justice, 27, 2, 16–43. 8 Bauman, Z. (1998). Globalization: The Human Consequences, Cambridge, Polity Press. For critique on the ‘withering of the state’ thesis, see in Aas, K.F. (2007). Globalization and Crime, Sage Publications, p. 143 ff. 9 Hertz, N. (2001). The Silent Takeover: Global Capitalism and the Death of Democracy, London, Arrow Books.

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fear of “the other” and of risks from real or perceived global threats.10 In this vision, the conventional European ideal of gradually absorbing vulnerable classes into the mainstream is replaced by notions of protection against external threats.11 In response to growing globalization and ensuing perceptions of risks, communities have started to be nostalgic about localized cultural roots and suspicious of immigrant communities and other aliens. It is in this sense that the historical nineteenth century notion of “dangerous classes” seems to be re-emerging.12 Fuelled by prevailing public concerns about security threats from perceived outsiders, many governments have extended their mandates and budgets for criminal justice. In an era of withering state functions, expensive prison administrations have, paradoxically, been booming, resulting in what has been called hyperincarceration. Legal and illegal immigrants make up a growing proportion of these populations.13 Although tougher criminal policies are often presented as ways to protect vulnerable victims, it is far from certain that the interests of victims are actually served by the current “rush to repression.” Processes of globalization impact on the situation of victims in conflicting ways.14 On the one hand, globalization makes people vulnerable to new forms of crime and creates new victims. At the same time, globalization challenges existing arrangements for victim participation and victim support. Without new initiatives to assist victims of global crimes, their needs will largely remain unmet. Fear-induced investments in criminal justice responses to international threats such as terrorism are unlikely to be victim-centered. Examples of victims in need of better protection are victims of human trafficking for sexual and labor exploitation and of other forms of transnational organized crime.15 Other categories are victims of crimes on the Internet, of cross-border environmental crimes committed by international companies or international crimes such as crimes against humanity. This book documents the magnitude of this “unjust side of globalization.” It discusses how globalization victimizes ordinary people and how recent improvements in the protection of victims of crime are compromized by the same processes. On the positive side globalization may create a new sensitivity to victimhood in far away corners. Mass audiences are increasingly sensitized to the plight of victims in foreign settings through documentaries and news items on television or videos posted on YouTube. The increasing use of the internet may open new avenues for expressing solidarity across borders and involving victims in criminal justice. We 10 Beck,

U. (2002). Risk Society: Towards a New Modernity, London, Sage. J. (1999). The Exclusive Society, London, Sage. 12 Swaan, A. de (1989). In Care of the State; Health Care, Education and Welfare in Europe and the USA in the Modern Era, Oxford, Oxford University Press. 13 Pratt, J., Brown, D., Brwon, M., Hallsworth, S., & Morisson, W. (eds.), (2005). The New Punitiveness: Trends, Theories, Perspectives, Cullompton, Willan Publishers. 14 For the purpose of this book, victims are defined as those who have been harmed by acts defined as criminal violations of national or international law. 15 Gooday, J. (2008). Human Trafficking; Sketchy Data and Policy Responses, Criminology and Criminal Justice, 8, 4, 421–2. 11 Young,

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will explore the risks of globalization but we will also explore how emerging opportunities can be exploited to prevent victimization and empower those affected by crime.

1.3 International Criminal Law, Human Security and Global Justice Undeniably, criminal law, both globally and regionally, is finally breaking out of its traditional, domestic mold. On the global scene, a body of international criminal law is emerging such as the UN conventions against transnational organized crime, including human trafficking, smuggling of migrants and the illegal trade in firearms, as well as against corruption. Over the past 20 years several global treaties against terrorism have been enacted. Some progress has also been made with the development of international collaboration in criminal justice on the ground, at least at the regional level. The European Union has set up several institutions in this area including Europol and Eurojust. It has also initiated the mechanism of the European arrest warrant. The Council of Europe Convention on Cybercrime may fall short of facilitating cross-border searches but at least provides for 24/7 liaison offices for immediate mutual legal assistance. Since 2000 the fight against global crime has been overshadowed by the “war on terrorism.” The attacks of 9/11 as well as those in Bali, London and Madrid have spurned governments to make the prevention of terrorist attacks their first security priority and to exchange intelligence on terrorist threats on an unprecedented scale. Initiatives in the war on terrorism can be seen as evidence that the world community has belatedly risen to the challenge of global crime. Others are more skeptical. An unintended side-effect of the war on terrorism with its heavy reliance on intelligence and diplomacy could have been that interest in judicial cooperation has been waning. Findlay in his book – Governing through Globalised Crime – expresses concern that the fight against terrorism and its links with organized crime results in an unprecedented expansion of the powers of the state at the expense of civil liberties.16 In our view emerging international laws and infrastructures to fight global crime should be placed in the wider context of the human security concept and be fundamentally victim-focused. Such orientation towards human rather than state security cannot be taken for granted. If adopted, it would act as a useful counterpoint to tendencies to instrumentalize the fight against global crime for political purposes. Besides human security another guiding concept of the book is global justice, loosely defined as the total of initiatives seeking to ensure that all human persons regardless of their location are offered an adequate level of protection under the

16 Findlay

(2008).

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law.17 The criminal law conventions of the United Nations against transnational crimes, just mentioned, are potentially an important vehicle for the promotion of global justice. A historical landmark in the promotion of global justice in the framework of human security is the establishment of the International Criminal Court in The Hague. The growing attention for international humanitarian law and specifically for the procedural role of victims therein, has led to the inclusion of an elaborate set of procedural victim rights in the Court’s Statute and rules of procedure. Victims have been given the right to participate in the proceedings, in accordance with the UN Victims Declaration of 1985 and the 2005 Guidelines mentioned before. This set of rights stands in stark contrast to the exclusion of the victim in the Nuremberg en Tokyo trials.18 It can be understood as the fruit of growing awareness of the responsibility of the world community not just for the protection of people against state violence regardless of national borders but also for the redress of actual victims. Whether the new generation of criminal trials against perpetrators of international crimes will actually be more victim-centered than in the past and can serve as a model for global justice remains to be seen but the law in the books gives ground for cautious optimism. A major development in the encouragement of global justice concerns the increasing influence of civil society actors on international lawmaking and lobbying for victim-centred justice. To illustrate the increased weight of international or national non-state actors in the formation of international law, and how civil society has become an actively involved observer, we refer to the important role of NGOs (especially the women’s coalition) in shaping key provisions in the Statute of the International Criminal Court and in achieving early ratification of the Statute. Another example of how institutions together with civil society are increasingly involved in international lawmaking are the “Guidelines in Matters involving Child Victims and Witnesses of Crime” adopted in 2005 by the UN Economic and Social Council. The International NGO, International Bureau for Children’s Rights, played a pivotal role in developing these guidelines, and lobbying for their adoption.19 Within Europe, a network of victim support organizations focusing on victims of terrorism was created and has become an important lobby group for EU activities in this eld. Also, Victim Support Europe gains influence over the European Union crime victims’ agenda. And the World Society of Victimology lobbies in UN circles for the advancement of a UN Convention on victims’ rights. As Boyle and Chinkin rightly point out, “epistemic communities comprising those with scientific, technical or other expertise come together in treaty-making alongside government representatives and members of international bureaucracies.”20 17 For thorough discussions on the concept of global justice, see Brooks, T. (ed.) (2008). The Global

Justice Reader, Oxford, Blackwell Publishing. is also an improvement compared to the limited victims’ rights provisions in the Tribunals for the Former Yugoslavia and Rwanda, see further Chapter 12. 19 See http://ibcr.org/eng/. 20 Boyle, A. & Chinkin, C. (2007). The Making of International Law, Oxford, Oxford Press, and Van Genugten, W.J.M., Van Gestel, R., Groenhuijsen, M.S., & Letschert, R.M. (2007). Loopholes, 18 It

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Globalization goes together with a mindset of cosmopolitanism embracing both its economic opportunities and matching moral responsibilities. While globalization has its undeniable downsides in the form of global crimes, it also generates the need for global justice. To be effective and sustainable, the desired global justice should, however, not be or perceived to be an instrument of self-elected governments seeking political dominion. It should incontestably serve the interests of bona fide communities of victims.21 What is needed is not just global justice as a technical achievement but global justice with victim-based legitimacy.

1.4 Outline The book’s overarching theme of the conflicting impact of globalization will first be approached in Chapter 2 by giving a general overview of existing international legal instruments on victims’ rights and complexities in the implementation process. The conclusion is drawn that no national government alone can hope to tackle the shadow sides of globalization. It makes a plea for more coordinated multi-level governance to advance the interests of victims of global threats. Chapter 3 continues by analyzing the emergence of different manifestations of ethical cosmopolitanism. The concept of human security is presented as a programme for elaborating cosmopolitan values that is waiting to be shared and realized in concrete policies in the public and private domains. In the view of the author, the development of a Human Security Index would be an important step forward towards the translation of the concept in a programme of action. We will return to this idea in the concluding chapter of the book. Part II of the book addresses victims of transnational crimes, such as organized crime and corruption, trafficking in human beings and environmental crimes. Victims of human trafficking for the purpose of (sexual) exploitation have in recent years received comparably more attention from the media and policymakers. As Rijken & Römkens demonstrate in Chapter 4, this concern has resulted in stepped-up efforts at enforcement and prosecution in a limited number of developed countries. Nevertheless, within this framework the interests of the victims are not sufficiently catered for. In many countries victims are treated as co-perpetrators of crimes against morality and undesirable aliens rather than as victims. Even within

Risks and Ambivalences in International Lawmaking; The Case of a Framework Convention on Victims’ Rights, Netherlands Yearbook of International Law, vol. XXXVII, pp. 109–154. 21 Findlay, M. (2008). Governing Through Globalized Crime, Futures for International Criminal Justice, Cullompton, Devon, Willan Publishing, p. 238: “International Criminal Justice will have a crucial role to play in the decades to come, formulating and materializing victim communities as a force in justice regulation. The formal institutions of ICJ will come to prosecute on behalf of and in protection of humanity. As such, victim constituencies will exceed the authorising agencies of the ICC as essential legitimators, beyond the victors who give perspective to the war crimes tribunals [. . .]”.

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the European Union, which has issued more victim-friendly instruments on the issue, a victim-centered or rights-based approach to human trafficking is still far from a reality. Mainly for this reason victims are reluctant to take part in criminal investigations and trials. In fact, as discussed in the chapter, their lack of cooperation is perceived to be the single most important impediment of successful prosecutions. In the imagery of the media on mafia-type operations the use of extreme violence to individuals stands in the foreground. The author of Chapter 5 elaborates on the less visible, nefarious impact of organized crime on communities and, in fact, populations of countries governed by criminal elites. The chapter discusses how organized crime groups and multi-national companies engaging in illicit activities can avoid prosecution for their crimes by choosing locations where state institutions are malfunctioning. State institutions in some developing countries have been captured by Criminal Political Networks. In such countries the state will rarely initiate criminal proceedings against its own public officials and politicians in cahoots with organized crime and/or condoning the criminal behavior of multinational companies. Members of the OECD have agreed to address these anomalies by initiating criminal proceedings against companies paying bribes to officials in developing countries. In reality very few investigations into bribery of foreign officials by multinational corporations have been carried out by any of the developed countries.22 Since no national interests are at stake and affected victim communities live in far away countries, the investigation of such cases is not given high priority.23 Besides analyzing the vulnerability of the indirect victims of transnational organized crime, the author explores the wider implications of the lack of strong victim focus for the legitimacy of the fight against global crime. Another implication of globalization is the exportation of poisonous materials to least protected territories and the need for arrangements for liability for environmental damage across borders. The recent attention for the responsibility of international companies and national authorities for environmental damage caused in Ivory Coast in Africa by cargo departing from the Amsterdam port illustrates the emerging of new types of victims in the international legal arena and their problems in getting access to justice. Chapter 6 examines which transnational legal responses could potentially relieve the needs of victims of transnational environmental damage 22 See Transparency International Annual Report, 2007, http://www.transparency.org/. Of the major exporting countries Canada, Japan and the UK are singled out as countries with no or very few prosecutions. See also TI report: Emerging economic giants show high levels of corporate bribery overseas; construction, real estate, oil and gas sectors most prone to corruption, London/Berlin, 08 December, 2008. 23 Local communities in oil-rich Angola, for example, are among the poorest in the world and corruption by state officials has been called the country’s only functioning institution. Yet not a single case of grand corruption has ever been brought before a court in Angola since independence. To our knowledge no cases have ever been tried against foreign international companies criminally operating in Angola either. The Angolese victim communities are without any legal recourse against a government looting a potentially affluent country in cahoots with international corporations.

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effectively and how the best possible response could be put in place. In the case of transnational environmental pollution, as illustrated by the Trafigura case, multilevel governance greatly complicates enforcement as well as effective access to justice for victims. International tort law can potentially play a role but victims will in any case require highly specialized legal aid to stand any chance of successfully suing their offenders in civil courts.24 Part III deals with the specific theme of victimization and victim protection in cyberspace, for which one of the authors coined the term e-victimology. Still largely un-charted territories indeed are the victimological dimensions of cyberspace, perhaps the most radical manifestation of globalization. The weak roles of traditional nation states as well as of budding international structures in cyberspace may explain the conspicuous absence of an academic or political discourse on victim protection in this domain. Victims of cybercrimes are largely left to their own devices. Chapter 7 starts with elaborating what comprehensive programme of preventative and restorative actions is required to help and empower victims of identity theft, particularly in the context of the Internet. Chapter 8 focuses on victims of cyberstalking and the difficulties in investigating and prosecuting this type of crime across borders. The authors of Chapters 7 and 8 present several examples of the powerlessness of victim-complainants of global crime. In the case of transnational cyberstalking uncertainties over jurisdiction will all too often result into non-action by all potential actors. If action is taken, international legal aid and extradition are complicated by lack of harmonized legislation. To tackle transnational identity theft, a plea is made for a multi-level governance approach that is to be coordinated at the global level by the United Nations but implemented in local settings by public and private actors. Unfortunately such an approach is unlikely to be of much use to victims seeking redress. Rights of victims have not been adequately addressed in the otherwise innovative Convention on Cybercrime of the Council of Europe. In the view of Van der Meulen & Koops, national programs to assist victims economically and emotionally seem the best victims can realistically hope for at this juncture. Chapter 9 takes a slightly different perspective in the sense that it does not focus on cybercrimes as such, but examines how digital tools offer unprecedented

24 An

important argument against the creating of procedural rights for victims in criminal procedure has always been that private citizens have the option to sue their offenders for damages in a civil court. Empirical studies have falsified the notion that crime victims can effectively obtain compensation from the offenders through civil proceedings. The access to courts in such cases is largely theoretical. Victims stand much better chances to receive (partial) compensation in the context of a criminal trial. The option of seeking justice through litigation at civil law courts seems even more problematic for victims of global crimes, Groenhuijsen, M.S. & Van Dijk, J. (1993). ‘Schadevergoedingsmaatregel en Voeging: De civielrechtelijke invalshoek’, Nederlands Juristenblad, 68, 5, pp. 163–167.

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opportunities to empower victims in responsible and efficient ways. The chapter addresses the challenges that victim support interests face in the new digital arena. This relates not only to victims of cybercrimes but victims of crimes in general. Victims of conflicts, wars and terrorism are central to Part IV. Part IV begins with an analysis of victims of international terrorism, notably the attacks by Al Qaeda. The analysis focuses not so much on the impact on direct and secondary victims, however dramatic, but on the intended impact of provoking vicarious victims into contentious, retaliatory action, thereby confirming the terrorists’ political agenda (Chapter 10). In this way the chapter provides a striking example of the interrelations between victimization and further onslaughts on human security. The increasing and far-reaching involvement of international organizations and national governments in interventions in human security crises across the world, results in an increasing involvement of private actors. Chapter 11 assesses the accountability gap that has surfaced since the tremendous growth of Private Military and Security Companies. It applies a double victim perspective, relating to employees of such companies falling victim to war activities and to people that become victims of their activities. The article gives an analysis of the far-reaching consequences of privatizing military operations. The outsourcing of military tasks to private companies is an example of the fragmentation of the nation state and can as such be seen as a result of globalization. In a majority of cases military companies are contracted not by states but by other private companies. Although victimizing acts by private military companies mostly take place in the arena of declared wars, existing regulations governing accountability, liability and redress are not applicable. According to Van Genugten, Van der Heiden & Jägers, international humanitarian and human rights law have to be interpreted in a maximalist way to be applicable. For concrete victims access to justice under international law remains a theoretical option at this juncture. In some cases regulations of individual countries including the USA governing jurisdiction of criminal offenses at facilities overseas may offer a possibility of redress. The USA has also passed legislation that opens possibilities to sue perpetrators before a civil court in the USA. However, the authors’ in-depth analysis is far from encouraging for victims. As in the case of environmental pollution across borders, individual or collective victims stand no reasonable chance to succeed in obtaining compensation without the support of specialized legal aid. As raised earlier, the establishment of the International Criminal Court has raised expectations for the development of global justice as cornerstone of human security. Chapter 12 will discuss the rights of victims before the International Criminal Court procedures and reveal the challenges in implementing these rights in the first cases. The ICC promises to become the shining model for domestic justice systems and for global justice generally. The Rome Statute has incorporated the basic principles of justice for victims as elaborated in the two UN Guidelines of 1985 and 2005

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to a much larger extent than the UN Conventions against Transnational Organized Crime and Corruption.25 The book ends with a concluding chapter synthesizing the various contributions. It underlines that emerging arrangements for global justice should be truly victimcentered and it makes practical recommendations on possible next steps in this global endeavor (Part V, Chapter 13).

25 Van

Dijk, J.J.M. & Wemmers, J. (2010). ‘International Victimology; Services and Rights for Victims of Domestic and International Crimes’, in: Mangai, & Natarajan (eds.), Introduction to International Criminal Justice, Boston, McGraw Hill.

Chapter 2

Global Governance and Global Crime – Do Victims Fall in Between? Rianne Letschert and Marc Groenhuijsen

2.1 Introduction Over the last decades, several states have made significant progress in raising awareness of victims’ rights, setting out the (quasi-)legal framework and establishing institutions and formal and informal mechanisms for providing protection, redress and justice.1 Victims’ rights legislation – be it through provisions in criminal codes or complete victims’ rights charters – and policies have been developed, although mostly in the more affluent countries of the world. Also at the global level, important achievements were made. What started with the United Nations Declaration on the Basic Principles of Rights of Victims of Crime and Abuse of Power in 1985 was followed by several instruments from both international and regional organizations. Whereas several of the international and regional instruments focus on what is often referred to as conventional crime, other instruments were influenced by the effects of globalization both on crime and its victims. As indicated in the introductory chapter to this volume, globalization processes, besides impacting on the economic, political and cultural spheres, have also had profound implications for the world of crime and justice. The globalization of various forms of crime poses serious challenges to the conventional systems of criminal justice. More than any other state institution besides the armed forces, criminal justice systems can be seen as quintessential expressions of the sovereign state, claiming exclusive jurisdiction over offences committed within its national borders. But in the context of globalization, both law enforcement organizations, prosecutorial agencies and the courts are trying to find ways to deal with emerging forms of transnational and international crimes. To bring to justice those committing crimes in other jurisdictions than their country of residence, requires cumbersome and time-consuming

R. Letschert (B) International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 For the purpose of this chapter, victims are defined as those who have been harmed by acts defined as criminal in national or international law.


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R. Letschert and M. Groenhuijsen

procedures of international legal assistance. On the other hand, the legal principle of universal jurisdiction and the emergence of such concepts as humanitarian intervention and “responsibility to protect” in the global arena, enable states or international organizations to deal with the scourge of crimes such as genocide, war crimes and crimes against humanity, regardless of territorial borders. Whereas domestic laws and procedures of criminal justice are replaced or supplemented by international or European criminal law, existing victim protection schemes have remained largely domestic in scope and coverage. They will need to be adjusted to these new settings or better implemented. Without new initiatives to assist victims of global crimes, their needs will largely remain unmet. In this chapter we will explore the magnitude of this challenge and how it could and should be met by the world community. Various forms of victimizations by complex crimes will be discussed in this book. They can roughly be divided in cross-border victimizations and collective victimizations. Cross-border victimization can impose difficulties in many ways; either the victim becomes victimized in another country than his country of residence, or the victim is victim of a crime committed in another jurisdiction than his own but the effects of the victimization take place in his country of residence (for example cybercrimes); a further complication is that such crimes are often committed by a network or group of (foreign) criminals residing in different countries. These characteristics each pose difficulties in making use of the existing victims’ rights provisions. Furthermore, there are the intricacies of collective victimization through international crimes such as genocide, war crimes, crimes against humanity or terrorism and organized crime. These crimes victimize whole communities or populations rather than individuals. The problems in providing victims’ rights to such collective victim groups do not only occur in countries where the crimes were committed, or before international courts like the International Criminal Court (hereafter ICC), but also in those countries that prosecute alleged perpetrators on the basis of the universal jurisdiction principle.2 The aim of this chapter is firstly to analyze implementation difficulties of victims’ rights focusing in particular on victims of international crimes and victims of cross-border victimization (Section 2.2). We will start by giving an overview of international and regional standards for the rights of victims and provide, where available, information on their implementation status. We will begin by presenting the main, generalist instruments, namely the 1985 UN Declaration, the recent initiative of drafting a UN Convention on Justice and Support for Victims of Crime and Abuse of Power (2005) and several instruments emanating from the European Union and the Council of Europe respectively. Next, we will discuss international

2 For a thorough analysis of this, See Ferstman, C. & Schurr, J. (2010), ‘Universal Justice? The Practice and Politics of Universal Jurisdiction Cases Relating to Crimes Committed in Africa’, in: Letschert, R.M., Haveman, R., Brouwer, de A.L.M., & Pemberton (eds.), A. Developing Victimological Approaches to International Crimes, Focus on Africa, Intersentia.

2

Global Governance and Global Crime – Do Victims Fall in Between?

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legal instruments focusing on special categories of victims such as victims of international crimes, human trafficking and terrorism. This will be followed by an analysis of global or multi-level governance structures in this field and some first proposals will be made to adjust existing victim protection schemes to the changing demands of a globalized world (Section 2.3).3

2.2 Analysis of Victims’ Rights Instruments4 2.2.1 General Victims’ Rights Instruments 2.2.1.1 United Nations The 1985 United Nations Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the UN General Assembly, covers a broad range of issues. These vary from truly abstract principles of justice (“compassion and respect for dignity”), to very practical demands (such as training for law enforcement officials). Some items concern the criminal justice system in general (for example, promoting alternative dispute resolution), while others involve details of the sanction system (such as restitution as an available option for sanctioning). There are also quite a few parts touching upon concrete, tangible rights and issues. We briefly mention the main provisions: • Establishing mechanisms in order to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible (Para. 5). • Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected (Para. 6(b)). • Providing proper assistance to victims throughout the legal process (Para. 6(c)). • Taking measures to minimize inconvenience, protect their privacy and ensure their safety from intimidation and retaliation (Para. 6(d)). • Avoiding unnecessary delay in procedures (Para. 6(e)). • Providing State compensation to direct victims and family and dependants (Para. 12). • Receiving the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means (Para. 14).

3 More elaborate proposals relating to the specific themes of this book will be made in the respective chapters. 4 See Compilation of International Victims’ Rights Instruments for an overview and exact references of the instruments discussed in this part. Also for a discussion of the legal status of the various instruments. Groenhuijsen & Letschert (2008), Wolf Legal Publishers.

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• Training police, justice, health, social service and other personnel concerned to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid (Para. 16). • In providing services and assistance to victims, giving special attention to particularly vulnerable victims (Para. 17).5

2.2.1.2 Implementation Resolutions of the UN General Assembly are considered to be soft law. Although the UN Declaration is therefore not legally binding, there are many indications that it has positively influenced the interpretation of existing texts, and contributed to the creation of legally binding rules in many countries. Declarations generally do not make any reference to a monitoring mechanism, as is also the case with the Victims’ Rights Declaration. Nevertheless, the UN itself initiated several monitoring projects in the years following the adoption of the Declaration.6 Several studies were carried out in the last 25 years that demonstrate that considerable progress has been made.7 In that sense, the Declaration could rightly be regarded as a catalyst of change and an important source of inspiration for domestic legislators across the world. Many victimology experts felt that the Declaration, 25 years after its adoption, needed to be updated to reflect advances in the theory and practice of victimology. It was also felt that implementation of the basic principles of justice for victims should be made the subject of a fully-fledged UN Convention, similar to the recently adopted UN conventions against organized crime and corruption. The World Society of Victimology (WSV), a worldwide lobby organization for the advancement of victims’ rights, and the International Victimology Institute of Tilburg University (INTERVICT) therefore decided to convene a meeting in December 2005 with 5 See for more detailed information on the UN Declaration, Van Genugten, W.J.M., Van Gestel, R., Groenhuijsen, M.S., & Letschert, R.M. (2007). ‘Loopholes, Risks and Ambivalences in International Lawmaking; The Case of a Framework Convention on Victims’ Rights’, Netherlands Yearbook of International Law, vol. XXXVII, pp. 109–154., Available also through http://ssrn.com/abstract=999315. 6 More details are provided by Groenhuijsen, M. (1999). ‘Victims’ Rights in the Criminal Justice System: A Call for More Comprehensive Implementation Theory’, in: Van Dijk, Van Kaam, & Wemmers (eds.), Caring for Crime Victims: Selected Proceedings of the Ninth International Symposium on Victimology, New York, NY, Criminal Justice Press, pp. 85–114, Groenhuijsen, M.S. (2005). ‘International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology’, in: Snyman, R. & Davis, L. (eds.), Victimology in South Africa, Pretoria, Van Schaik Publishers, pp. 333–351, or Van Genugten et al. (2007). 7 For an overview, see Schneider, H.J. (2000). ‘Victimological Developments in the World during the Last Three Decades: A Study of Comparative Victimology’, in: Gaudreault, A., & Waller, I. (eds.), Beyond Boundaries. Research and Action for the Third Millennium, Montreal, Association québécoise Plaidoyer-Victimes, pp. 19–68; and Brienen, M., Groenhuijsen, M.S., & Hoegen, E. (2000). ‘Evaluation and Meta-Evaluation of the Effectiveness of Victim-Oriented Legal Reform in Europe’, Criminologie, 33, 1, pp. 121–144.

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experts from different world regions to discuss the need and possible contents of a draft convention on victims’ rights. The meeting concluded that such document was indeed desirable and elaborated a first draft of a UN Convention on Justice and Support for Victims of Crime and Abuse of Power. Following that meeting, in August 2006, the draft was discussed at the 12th International Symposium on Victimology organized by the World Society of Victimology in Orlando, USA, leading to some revisions.8 Since then, the WSV has been lobbying Member States of the UN to propose a formal consideration of the draft text by the UN Commission on Crime Prevention and Criminal Justice (Crime Commission for short).9 The Draft reflects state-of-the-art notions of the desired position of victims in criminal justice settings and about victim support. Furthermore, it takes into account the most recent developments in standard-setting on victims’ rights by other international and regional organizations. And, finally, and perhaps most importantly, the Draft includes an extensive section on a strong mechanism for monitoring implementation. The draft convention provides for the establishment of a Committee on Justice and Support of Victims of Crime and Abuse of Power which would review the progress made by States Parties in achieving their obligations under the convention. According to the draft convention, this committee would not rely exclusively on the information provided by States Parties but could invite the Secretary General of the United Nations to gather information and provide expert advice on matters of implementation. With the adoption of this provision, Member States would opt for a monitoring and review mechanism that is on a par with those of other international criminal law and human rights conventions (e.g. the OECD Convention on Bribery) and go beyond those from the UN conventions against organized crime and corruption. Although the objective of a better deal for crime victims is widely embraced across the world, it seems at this juncture doubtful that any UN Member State will take the lead in initiating a formal discussion that could lead to the opening of negotiations on the proposed convention. Besides the usual difficulties on reaching consensus among Member States with diverging political, economic and cultural agendas on the need of elaborating a new convention on a particular topic, the current mood in the UN Crime Commission does not seem to be conducive to such initiative. As will be discussed in Chapter 5, there is insufficient political will to follow up vigorously the implementation of existing, newly adopted criminal law conventions and protocols. This disappointing reality may dissuade Member States sympathetic to the idea of a victims’ rights convention to form coalitions that could

8 The

first draft, including the revisions, can be found at http://www.tilburguniversity.nl/intervict/ undeclaration/convention.pdf. Further revisions have been discussed and agreed upon during a Symposium held at the Tokiwa International Victimology Institute on February 15 & 16, 2008. The proceedings of this Symposium have been published: Dussich, J. & Mundy, K. (eds.) (2009). Raising the Global Standards for Victims: The Proposed Convention on Justice for Victims of Crime and Abuse of Power, Mito, Seibundo Publishing Co., Ltd. 9 Representatives of the WSV attended the annual meetings of the UN Crime Commission in 2008 and 2009 to this end, and the UN Crime Congress in Brazil 2010.

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take the lead in elaborating new UN legislation in this domain. An argument why the UN Crime Commission would yet be well-advised to consider discussions on a possible convention, or on another major initiative to promote victims’ rights, is that it would serve to provide the somewhat lacklustre UN Crime Prevention and Criminal Justice Programme with a new, appealing people-oriented focus. Such focus could revitalize the programme by balancing the current somewhat controversial association of the programme with the USA-led wars on drugs and terrorism and broadening its international constituencies. A victim focus for the UN Crime Prevention Programme will not only assure that ordinary people will be among its primary beneficiaries. It will also, through the consultation of representatives of victim communities, introduce a countervailing force against political pressures to serve special state interests in the control of crime. As was already mentioned in the introductory chapter, a focus on victim interests can help legitimize the use of force immanent in international criminal law arrangements beyond state interests. Whether the adoption of the Draft Convention could also help to alleviate some of the complexities caused by collective or cross-border victimizations remains to be seen. The Draft contains some references to cross-border victimizations. One rather vague reference to cross-border victimization can be found in Article 7 (1.i.) which stipulates that states should facilitate information which also entails the following: “if they are resident in another State, any special arrangements available to them in order to protect their interests.” Also, Article 11 (7) provides that “in cases of cross border victimization, the State where the crime has occurred should pay compensation to the foreign national, subject to the principle of reciprocity.” In spite of these two provisions, the Draft as it stands, fails to clearly recognize the peculiarities and complexities that such victimizations bring about. The whole language of the Draft Convention seems inspired by the many achievements victimology has reached with regard to conventional crimes committed in a domestic setting. References to special assistance measures in case of collective victimizations are absent altogether, despite the fact that victims of abuse of power are prominently represented in the title of the convention. These omissions constitute a missed opportunity since the UN 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power also fell short in this respect. It included only four rather vaguely formulated articles relating to victims of abuse of power.10 2.2.1.3 The European Union and the Council of Europe Compared to most other regions in the world, Europe has made significant progress since the adoption of the 1985 UN Declaration by creating a comprehensive (quasi) legal framework offering protection to victims of crime. Both the European Union and the Council of Europe have drafted several binding and non-binding instruments

10 See Lamborn, L.L. (1987). ‘The United Nations Declaration on Victims’, Rutgers LJ, 19, 59–95;

See also Bassiouni, M. (2006). ‘International Recognition of Victims’ Rights’, Human Rights Law Review, 6, 203–279.

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in this field.11 Other regional organizations, such as the African Union or the Organization of American States,12 have made important achievements in the field of human rights, but have not adopted any specific victims’ rights instruments. It is for that reason that the following examples relating to provisions aiming to address cross-border victimization or collective victimization mainly stem from European instruments. The most important achievement within the EU concerning the protection of general victims’ rights is the adoption of the EU Council Framework Decision on the Standing of Victims in Criminal Proceedings (2001) and of the EU Directive on Compensation to Crime Victims (2004).13 The EU Directive on Compensation is legally binding for all Member States. The EU Framework Decision, although not a treaty in the formal sense of the word, is also a legally binding document. It imposes a formal obligation on the EU Member States to ensure that their domestic laws and practices approximate the new EU standards. In case of gaps or discrepancies, either new legislation should be introduced or existing legislation adapted, or policy measures should be taken in order to ensure compliance. In other words, the goals of the Framework Decision are binding, although the Member States are left some discretion as to the means they choose to warrant compliance.14 The adoption of the Framework Decision was initially legitimized by invoking a classical EU objective, namely the freedom of movement. The link to developing specific provisions for victims of crime was made by arguing that residents of any Member State of the EU who choose to temporarily or permanently reside in another Member State should receive the same level of protection as they would in their home country. The Framework Decision was thus clearly inspired by crossborder victimizations. In addition, it was argued that those actually victimized by 11 Note

Triffterer who stated that “Europe seems predisposed as a forerunner of the ‘globalization of criminal justice’.” Triffterer, O. (2000). ‘Legal and Political Implications of Domestic Ratification and Implementation Processes’, in: Claus Kreß & Flavia Lattanzi (eds.), The Rome Statute and Domestic Legal Orders, Nomos, Baden-Baden and Il Sirente, Ripa di Fagnano Alto, vol. 1, pp. 1–28 at pp. 25–27. 12 Note that the Inter-American Court of Human Rights does grant victims procedural rights, such as participation rights. 13 Other EU legislation also touches upon victims’ needs and rights, for instance a framework decision on combating terrorism, a framework decision on combating human trafficking, and a framework decision on combating sexual abuse and exploitation of children. 14 With the entry into force of the Treaty of Amsterdam, framework decisions under Title VI of the EU Treaty (Police and Judicial Cooperation in Criminal Matters) have replaced joint actions. More binding and more authoritative, they should serve to make action under the reorganized third pillar more effective. Framework decisions are used to approximate (align) the laws and regulations of the Member States. Proposals are made on the initiative of the Commission or a Member State and they have to be adopted unanimously by the European Council. They are binding on the Member States as to the result to be achieved but leave the choice of form and methods. Contrary to directives, framework decisions have no direct effect. With the entry into force of the Lisbon Treaty distinctions between the EU pillars have been abolished and existing framework decisions such as those on the position of crime victims will have to be transformed into regular directives.

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crime were likely to be in need of special protection (mainly because “foreign” victims – such as workers, students or tourists – have no knowledge of the judicial system of the country where they were victimized, and/or may not speak the language etc.).15 The main articles relating to cross-border victims are Articles 11 and 12. Article 11 places a general duty on Member States to ensure that authorities can take appropriate measures to mimimize difficulties, e.g. in the organization of proceedings, where the victim is resident in a different country from the state of the offense. Specific items where assistance should be provided are as follows: the possibility to make a statement immediately after the crime; the possibility to use video and telephone conferencing for hearing a victim; the possibility to report a crime before the authorities of the country of residence rather than the country of crime. Article 12 prescribes the duty for states to foster, develop and improve cooperation with foreign states in cases of cross-border victimization, whether in the form of networks directly linked to the judicial system or of links between victim support organizations. The Framework Decision thus acknowledges the importance of both governmental and non-governmental cooperation. In 2006, another European regional organization, the Council of Europe, issued a Recommendation on Assistance to Crime Victims (2006)8.16 The Recommendation contains a wide variety of victims’ rights which in some regards are more elaborative compared to other victims’ rights instruments. For instance, Article 3.1 relating to assistance urges states to “undertake that victims are assisted in all aspects of their rehabilitation, in the community, at home and in the workplace.” Another example is Article 5.1 which encourages states to “provide or promote dedicated services for the support of victims and to encourage the work of non governmental organizations in assisting victims.” Furthermore, Article 16.3 emphasizes the important role of NGOs in focusing public attention on the situation of victims. States are furthermore encouraged to set up centers for victims of specific crimes such as sexual and domestic violence (Article 5.3) but also for victims of crimes of mass victimization such as terrorism (Article 5.4). In addition, Article 12.3 notes that specialized training should be provided to all persons working with specific groups of victims, including victims of terrorism. That this recommendation contains more detailed provisions compared to the UN Declaration or the EU Framework Decision is also demonstrated by Article 5.5 which provides that states should consider setting up or supporting free national telephone help lines for victims and Article 10.9 which encourages the media to adopt self-regulation measures in order to protect victims’ privacy and personal data. Regarding coordination and cooperation, Article 14.2 states that each state should ensure, both nationally and locally, that all agencies which in one way or another have contact with victims, work together to ensure a coordinated response. 15 For more information on the background to the adoption of the Framework Decision, see Rock, P.

(2004). Constructing Victims’ Rights: The Home Office, New Labour and Victims, Oxford, Oxford University Press. 16 See further www.coe.int/victims for more information on the work of the CoE on victims of crime, and also for the other CoE victims’ rights instruments.

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In addition, it is mentioned that “additional procedures are elaborated to deal with large-scale victimisation situations, together with comprehensive implementation plans including the identification of lead agencies.” Article 15 addresses transnational crimes. It states that “States should co-operate in preparing an efficient and co-ordinated response for transnational crimes. They should ensure that a comprehensive response is available to victims and that services co-operate in providing assistance (15.1).” Section 15.2 provides that “in cases where the victim does not normally reside in the state where the crime occurred, that state and the state of residence should co-operate to provide protection to the victim and to assist the victim in reporting the crime as well as in the judicial process.” 2.2.1.4 Implementation17 The European Commission published a first evaluation report on the implementation of the EU Framework Decision on 16 February 2004 which examined transposal as of 25 March 2003. In 2009, the second report of the Commission was published.18 This latest report takes into account implementation of all Articles of the Framework Decision by 15 February 2008 in all twenty-seven Member States. The Commission found the implementation of this Framework Decision generally unsatisfactory. The national laws of many Member States sent to the Commission contain numerous omissions. Moreover, they largely reflect existing practice prior to adoption of the Framework Decision. According to the report, “the aim of harmonising legislation in this field has not been achieved owing to the wide disparity in national laws. Many provisions have been implemented by way of non-binding guidelines, charters and recommendations. The Commission cannot assess whether these are adhered to in practice.” This means that already two implementation reports concluded that implementation was unsatisfactory.19 Although the Commission also acknowledged that more reliable data is needed to make a full assessment of Member States’ implementation.

17 The

implementation of the CoE recommendation has not yet been evaluated and will therefore not be further analysed here. 18 Brussels, 20 April 2009, COM(2009) 166 final, Report From The Commission, Pursuant to Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) [SEC(2009) 476]. 19 ‘Implementation of international norms refers to incorporating them in domestic law through legislation, judicial decision, executive degree, or other processes’, while ‘compliance includes implementation, but is broader, concerned with factual matching of state behaviour and international norms’. See Shelton, D. (2000). ‘Introduction, Law, Non-Law and the Problem of “Soft Law”’, in: D. Shelton (ed.), Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System, Oxford, Oxford University Press, 2000, pp. 1–18, 5. Interestingly enough, in literature and case law in the field of European law normally no distinction is made between implementation and compliance. Here, implementation is usually the overarching term for both the obligation to transpose European laws (especially directives and framework decisions) into national legislation and the obligation to ensure that compliance is guaranteed on the national level. See Prechal, S. (2006) Directives in EC Law, Oxford, Oxford University Press.

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Therefore, in 2007, the European Commission asked Victims Support Europe,20 represented by the Portuguese Victim Support organization APAV in cooperation with INTERVICT, to conduct a study aiming to provide the European Commission and other interested parties with a fuller and more comparative picture of the effects of the Framework Decision on the twenty-seven Member States and on the practical support to victims of crime. The goal of the project Victims in Europe was to see to what extent the Member States have complied with the Decision, not only through implementation in legislation, but also in practice. Out of this survey came that cross-border victims generally have access to translators across the EU. However, in many cases, this is not a right specific to victims of cross-border crimes but stems from general criminal procedure. The same can be said about the right of victims to make a statement immediately after the commission of the crime, which exists in approximately half of the Member States.21 Furthermore, from both the Commission’s and Victims Support Europe’s evaluations, it follows that the right to information is not properly implemented. Access to information is one of the most fundamental victims’ rights since non-compliance with it often entails that the victim does not become acquainted with any of his other rights. Considering that this right is not adequately implemented for conventional crime victims, it is to be feared that the situation will even be far worse for cross-border victims. In addition, the majority of the EU Member States do not offer victims the opportunity to report crimes committed abroad once they return home. Most of the countries offer victims this opportunity only in cases in which they themselves have jurisdiction. As this provision in Article 11 lies at the heart of the framework decision, improvements are urgently called for.22 2.2.1.5 Changes After the Adoption of the Lisbon Treaty With the adoption of the Treaty on the Functioning of the European Union (Lisbon Treaty), framework decisions will have to be updated and transformed into directives. This transformation is likely to enhance the legal status of the EU standards for victims’ rights. The Treaty of Lisbon sets out, in relation to the rights of victims of crime, that minimum standards can be established to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters (Article 82.2). In the provision of sub 2 itself, some important limitations to EU competence are included. First of all, the substantive limitations stating that the legal measures shall only concern the following aspects: mutual admissibility of evidence between Member States, the rights of individuals 20 Victims

Support Europe is an umbrella organization of national victim support organizations, see http://www.victimsupporteurope.eu 21 APAV-INTERVICT Report (2010), Implementation of the EU Framework Decision on the standing of victims in the criminal proceedings in the Member States of the European Union, Project on behalf of Victims Support Europe, p. 149. Available at http://www.apav.pt/portal_eng and http://www.tilburguniversity.nl/intervict. 22 APAV-INTERVICT report, p. 156.

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in criminal procedure, the rights of victims of crime. The Council can extend this list to other aspects of criminal procedure by taking such a decision unanimously and after the consent of the Parliament. Furthermore, the provision includes some procedural limitations. First of all, the provision must be necessary to facilitate mutual recognition and police and criminal law cooperation. Second, it must have a crossborder dimension. Third, the differences between the legal traditions and systems of the Member States must be taken into account. And fourth, only minimum rules can be adopted. Especially the addition of the cross-border dimension looks, at first sight, to seriously limit the thematic scope of competences of the EU, also with regard to improving victims’ rights. However, with regard to the cross-border dimension, we agree with Peers who states “that the European Union’s specific criminal procedural powers would be rendered meaningless if they could only be applied in cross-border proceedings.”23 Moreover, in the past years, under the previous EU regime – the three pillar structure-, the scope of approximation of laws was widened by adopting legislation relating to procedural issues where the legal basis and competence of the EU was also not as such prescribed.24 Also on a policy level, increased calls for the improvement of victims’ rights implementation are made. The European Council, in the 2009 Stockholm Programme, called for an integrated and coordinated approach to victims. The Council acknowledged the unsatisfactory implementation of the Framework Decision and the Directive. It called upon Member States and the Commission to take a variety of measures, from strengthening legislation and policy to increasing research. The European Council called on the Commission and the Member States to, amongst others: – examine how to improve legislation and practical support measures for protection of victims and to improve implementation of existing instruments; – offer better support to victims otherwise, possibly through existing European networks that provide practical help and put forward proposals to that end; – examine the opportunity of making one comprehensive legal instrument on the protection of victims, by joining together the Directive on compensation to victims and the Framework Decision on victims, on the basis of an evaluation of the two instruments.25 Work to that end has recently been initiated by the European Commission early in 2010 in consultation with Victim Support Europe and individual experts. Under consideration is an omnibus directive incorporating updated versions of both the

23 Peers,

S. (2008). ‘EU Criminal Law and the Treaty of Lisbon’, European Law Review, 33, 4, 507–529. 24 See further Rijken & Letschert, ‘Harmonizing Legislation Post-Lisbon’ (2011). 25 See The Stockholm Programme – An open and secure Europe serving and protecting the citizen, European Council, Brussels, 2 December 2009.

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Framework Decision and the Directive on State Compensation. It therefore appears that the European Union is currently putting the victims’ issue, unlike the UN, more prominently on the agenda.26 A careful caution should, however, be made. Considering the poor implementation results of the existing EU victims’ rights instruments, the question how to effectively improve the current situation seems more and more urgent. The various, often uncoordinated, evaluation studies have until now not been able to provide a clear and coherent picture on desirable reforms.

2.2.2 Compensation to Crime Victims At the European level, two important documents exist that deal with the specific issue of compensation to victims. It is often stated that victims are primarily in need of respect and recognition. Having noted that, it is obvious that many victims also suffer financial consequences from the crime committed against them. This burden can be alleviated by payment of compensation (or reparation) by the offender (in American law known as restitution). In a majority of cases, though, the offender is not found or apprehended, or is unwilling or unable to compensate the damages incurred by the victim. It is widely felt that when this happens in instances of violent intentional crime, the state should step in and provide financial compensation to victims as an expression of solidarity with their fate. State funds for the payment of (partial) compensation are among the oldest provisions for victims of crime, in many Western countries dating back to the 1970s. This principle has also been fully recognized in the UN Declaration of 1985, and was subsequently reaffirmed and elaborated in a number of instruments specifically dedicated to this topic. Most noteworthy in this respect are the early Council of Europe Convention on the Compensation of Victims of Violent Crimes (1983) and the more recent European Union Directive relating to Compensation to Crime Victims (2004), already mentioned. The Council Directive 2004/80/EC of 29 April 2004 relating to Compensation for Crime Victims aims at establishing state compensation funds in Member States where they do not exist and to facilitate access to compensation in situations where the crime took place in another Member State than that of the victim’s residence. The Directive seeks to set minimum standards, not to harmonize national laws because “the latter would not be appropriate in view of the current differences between the Member States, due to the close connection to national laws on civil liability and tort and also due to socio-economic discrepancies.”27 The Directive 26 See

also Council Conclusions on a strategy to ensure fulfilment of the rights of and improve support to persons who fall victim to crime in the European Union, 2969th Justice and Home Affairs Council Meeting, Luxembourg, 23 October 2009. Also within the field of violence against women, children and sexual identity violence important developments are underway. The EU is considering adopting harmonizing legislation in this field and is currently (2010) undertaking a feasibility study in this regard. 27 See Proposal for a Council Directive on Compensation to Crime Victims, COM (2002) 562 final, 2002/0247 (CNS), Brussels, 16 October 2002, p. 10.

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ensures equal access for all EU citizens to compensation. The Directive sets up a system of cooperation to facilitate access to compensation to victims of crime in cross-border situations, which must be implemented by the compensation Funds of Member States. The Directive therefore requests from all Member States that a functioning compensation mechanism is in place.28 Article 2 states that compensation shall be paid by the competent authority of the Member State on whose territory the crime was committed. The Directive furthermore instructs states to establish assisting authorities and deciding authorities, whose tasks vary from providing assistance to potential applicants and deciding upon applications for compensation. The Directive does not address issues relating to the nature of the expenses eligible for compensation.29 According to the explanatory memorandum, close relatives and dependants of victims that have died as a result of the injuries sustained are also entitled to protection under the Directive.30 The Council of Europe adopted in 1988 the first piece of hard law on victims’ rights with a Convention on the thematic issue of crime compensation. This Convention, which entered into force on 1 February 1988, creates minimum standards relating to compensation for the State Parties.31 The scope of application of the Convention concerns victims of intentional crimes of violence who have suffered serious bodily injury or impairment of health, which is directly attributable to the intentional crime. Surviving dependants of persons who have died as a result of such crimes (Article 2) are eligible as well. Article 3 incorporates the territoriality principle, which declares the Convention applicable to nationals of the State Party to the Convention, and to nationals of all Member States of the CoE who are permanent residents in the state on whose territory the crime was committed. Compensation is independent of the arrest of the perpetrator. Compensation shall cover at least the following items: loss of earnings, medical and hospital and funeral expenses, and, with regard to dependants, loss of maintenance (Article 4). 2.2.2.1 Implementation Unsurprisingly, the latter two legally binding documents have been adopted in one of the more affluent regions of the world. In most countries of the world, a national compensation scheme for victims of violent crimes is still a distant ideal. Improving

28 See

paragraph 7 of the Preamble. original draft did contain standards on this issue, noting that ‘compensation shall cover pecuniary and non-pecuniary losses [. . .]’. Id., Article 4, p. 22. 30 Proposal for a Council Directive on Compensation to Crime Victims, COM (2002) 562 final, 2002/0247 (CNS), Brussels, 16 October 2002, p. 12. 31 Signed in Strasbourg on 24 November 1983, European Treaty Series (ETS) – no. 116. 21 of the 47 Member States of the CoE have ratified the convention, most of them being also EU Member States. Already in 1977, a resolution on compensation of victims of crime was adopted by the Council of Ministers which paved the way for the 1983 Convention. See for more information also Buck, K. (2005). ‘State Compensation to Crime Victims and the Principle of Social Solidarity – Can Theoretical Analysis Contribute to a Future European Framework’, European Journal of Crime, Criminal Law and Criminal Justice, 13, 2, 148–178. 29 The

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this situation globally would seem one of the main challenges for the victims’ rights movement in the present century. The application of the EU Directive on Compensation to Crime Victims (Directive 2004/80/CE du Conseil du 29 avril 2004) was recently evaluated.32 All Member States who have implemented the Directive have schemes in place which allow victims to submit an application for compensation. All Member States who have implemented the Directive (with the exception of Estonia) have implemented Articles 2–3 which requires the creation of responsible authorities and administrative procedures. Only few victims make use of the option to file complaints against foreign compensation funds through sister organizations in their home country. A major shortcoming is furthermore that in two Member States no general compensation schemes for victims of violent crime exist at all (Italy and Greece). The huge variation in eligibility criteria of existing schemes also seems to limit the possibility of victims to claim compensation in many Member States. Other differences within the EU Member States relate to rules with regard to the eligibility requirements concerning cross-border victimization, especially with regard to EU nationals victimized outside the EU and non-EU residents victimized in an EU Member State. It should furthermore be considered whether a clear rule should be established on additional compensation from a victim’s home country. For example, if a Dutch citizen becomes a victim of a crime in Hungary, should this entail that he has a statutory right to claim additional compensation in the Netherlands? The APAV-INTERVICT study of 2010 on the implementation of the Framework Decision furthermore indicates that there is broad dissatisfaction over the timelines of compensation, the adequacy of payment, the compensation procedure and the ease of making a claim.

2.2.3 Specific Instruments: Victims of International Crimes33 Victims of international crimes such as genocide, crimes against humanity and war crimes, or other gross human rights violations often experience existing international and regional legal instruments on general victims’ rights to be inadequate or difficult to implement. By adopting the UN 1985 Declaration, governments agreed to respect the rights of victims of crimes in their domestic courts. The initial draft of the Declaration sought to extend its scope to include victims of abuse of power. For lack of political consensus, the rights and interests of victims of abuse of power were not fully addressed in the adopted version. This omission was partly corrected 32 See

Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the application of Council Directive 2004/80/EC relating to compensation to crime victims, SEC(2009)495, Brussels, 20 April 2009. http://ec.europa.eu/ justice_home/doc_centre/civil/studies/doc/study_compensation_to_crime_victims_en.pdf. 33 The examples in this section follow the themes discussed in the subsequent chapters; for that reason, no mention is made of the still expanding legal victims’ rights framework relating to violence against women and children.

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by the subsequent adoption of the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.34 The acknowledgement of the victimological notion of collective victimhood makes this instrument conceptually truly innovative.35 The Preamble explicitly notes that “contemporary forms of victimization, while essentially directed against persons, may nevertheless also be directed against groups of persons who are targeted collectively.” Interesting is also that in Section V, Article 8, it is stated that “where appropriate, in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization” and thus follows the definition of the 1985 Declaration. The latter category is not mentioned in all victims’ rights instruments.36 Furthermore, relating to access to justice, Article 13 provides that, “in addition to individual access to justice, States should endeavour to develop procedures to allow groups of victims to present claims for reparation and to receive reparation, as appropriate.” Section VII, Article 11b refers to “reparation” as constituting a moral imperative, in the sense that “what has been broken must be mended.” It entails much more than “compensation,” by which international law understands “restitution in money.” Reparation implies restoration of the victim. In this way, it can contribute to aims of rehabilitation, reconciliation, restoration of democracy and law. In case of acts of omissions which constitute gross violations of international human rights law or serious violations of international humanitarian law that can be attributed to a state, a state must provide victims with adequate, prompt and effective reparation. Liable parties are obliged to reimburse the state when the latter has already paid the victims. States should furthermore endeavour to establish national programmes for reparation and other assistance to victims in the event that the party liable for the harm suffered is unable or unwilling to meet its obligations. The different forms of reparation were identified by the UN Special Rapporteur entrusted with the task to draft the principles, Mr. Van Boven, as meaning “restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition,” now laid down in Article 18.37 34 The

principles are often referred to as the Van Boven/Bassiouni Principles, referring to the two principal drafters. 35 The guidelines were adopted and proclaimed by the United Nations General Assembly on 16 December 2005 (Res. 60/147), after a 15-year period of negotiations. Note that the Preamble mentions that the principles and guidelines do not ‘entail new international or domestic legal obligations, but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms.’ 36 For instance in the EU and CoE instruments mentioned above. 37 Van Boven, T. van (2009). ‘The Right to a Remedy as contained in International Instruments: Access to Justice and Reparation in Treaties and the New United Nations Principles’, in: Flauss, J.F. (ed.), La protection internationale des droits de l’homme et les droits des victimes (pp. 31–56), Bruxelles, Editions Bruylant, p. 22. See also De Greiff, P. (2006). ‘Justice and Reparations’, in:

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The Basic Principles and Guidelines have incorporated some of the classical victims’ rights, such as the one in Article 10 relating to the treatment of victims (ensuring that victims should be treated with humanity and respect for their dignity, ensure safety, physical and psychological well-being and privacy, and the prevention of secondary victimization). Another example of a classical victims’ right is the right to information (Article 24), urging states to develop means of informing the general public and, in particular, victims of gross violations, of the rights and remedies contained in the Basic Principles, and of all available legal, medical, psychological, social, administrative and all other services to which victims may be entitled. Important also is that Article 24 mentions that victims are entitled to seek and obtain information on the causes leading to their victimization, and to learn the truth with regard to these violations. The right to learn the truth is not incorporated so prominently in other international victims’ rights instruments. For victims of international crimes, this is an important aspect that needs to be addressed when guaranteeing the right to information. It goes beyond existing regulations about providing information on important developments in a possible criminal procedure or the availability of services.38

2.2.4 Victims at the International Criminal Court International criminal justice mechanisms have too often overlooked the fact that providing justice in the aftermath of international crimes should also adequately address victims’ needs.39 Victims of crimes tried by international tribunals such as the Tribunal for the Former Yugoslavia or the Rwanda Tribunal found that their rights were only marginally addressed. The International Criminal Court takes a more comprehensive approach in its mandate. The Statute of the Court has been hailed as “a milestone in victimology” because it contains some far-reaching provisions relating to victims’ issues.40 Compared to the procedural rules governing previous International Tribunals (such as the former Yugoslavia and Rwanda), the main improvements are the extended availability of protective measures for victims,

De Greiff (2006) (ed.), The Handbook of Reparations, The International Center for Transitional Justice, Oxford, Oxford University Press, pp. 452–503. 38 See for more information on the van Boven/Bassiouni Principles and reparation in general, Shelton, D. (2005). ‘The United Nations Principles and Guidelines on Reparations: Context and Contents,’ in: De Feyter, Parmentier, Bossuyt, & Lemmens (eds.), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations, Antwerpen, Intersentia, pp. 11– 32, and Letschert, R.M, Haveman, R., Brouwer, de, A.L.M., & Pemberton, A. (2010). Devising Victimological Approaches to International Crimes, Antwerpen, Intersentia. 39 See Drumbl, M.A. (2007). Atrocity, Punishment and International Law. Cambridge, Cambridge University Press. 40 Groenhuijsen, M.S. (2005). ‘International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology’, in: Snyman & Davis (eds.), Victimology in South Africa, Pretoria, Van Schaik Publishers, pp. 333–351.

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expanded victim participation, and better provisions on reparation.41 Another innovation is the establishment of a Victims and Witnesses Unit that advises the Prosecutor and the Court on a wide range of appropriate protective measures, security arrangements, counseling and assistance. The ICC also boasts a Victims’ Participation and Reparations Section that is responsible for assisting victims with the organization of their legal representation before the Court.42 These are major steps forward and the ICC provisions in this regard might turn out to be a “best practice” in reducing risks of secondary victimization.43 Furthermore, an important innovation is that the Court may award reparations on an individualized basis or, where it deems appropriate, on a collective basis or both. In addition, a Trust Fund has been set up aiming to provide victims with reparation.44 Nevertheless, the enormous number of victims wishing to participate in the Court’s procedures poses the Court for a yet still unresolved challenge, as will be further elaborated in Chapter 12. There is, however, a significant interest here for victims, as a satisfactory day in court could add to rebuilding a victim’s self-esteem, as is evidenced by various victimological studies.45

2.2.5 Victims of Trafficking in Human Beings and Other Forms of Organized Crime According to the 2005 Human Security Report, “the trafficking in human beings has burgeoned into a multi-billion-dollar industry that is so widespread and damaging to its victims that it has become a cause of human insecurity.”46 In the past 10 years, human trafficking has become a major priority of the world community. In 2000, the UN adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention against Transnational Organised Crime.47 The Protocol contains some specific victims’ 41 Garkawe, S. (2003). ‘Victims and the International Criminal Court: Three Major Issues’, International Criminal Law Review, 3, 345–365. 42 See for more information http://www.icc-cpi.int/victimsissues.html. 43 Secondary victimisation is defined in CoE Recommendation 2006. (8) as ‘victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim’ (Article 1.3). 44 http://www.icc-cpi.int/vtf.html. 45 In July 2009, INTERVICT organized an expert meeting on “developing victimological approaches to international crimes”, analyzing whether victims of the latter have different needs than victims of conventional crime. The results are published in Letschert et al. (2010). See furthermore http://www.tilburguniversity.nl/intervict/events/reportrwanda.pdf for the report of the conference. See further Danieli, Y. (2009). ‘Massive Trauma and the Healing Role of Reparative Justice’, in: Ferstman, C., Goetz, M., & Stephens, S. (eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Humanity, Martinus Nijhoff Publishers. 46 Human Security Report, 2005, 86. 47 See also Chapters 4 and 5. Chapter 5 will provide detailed analyses of the implementation status of the Convention against Transnational Organized Crime.

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rights which have a wide scope in the sense that reference is made to a set of socioeconomic measures. For instance, Article 6.3 notes the following: Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society, and, in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological and material assistance; and (d) Employment, educational and training opportunities. International organizations such as the IOM, ILO, UNICEF and UNODC have initiated global programmes against human trafficking. The European Commission has been actively engaged by developing a comprehensive and multidisciplinary approach towards the prevention of and the fight against human trafficking. Also, a Framework Decision on Combating Trafficking in Human Beings was adopted, although here the focus is on prevention and not so much on the victims.48 In 2010, following the Lisbon Treaty, the EU is negotiating a proposed Directive on Preventing and Combating Trafficking in Human Beings, and Protecting Victims. This document has a wider scope than merely combating and includes various provisions relating to the protection of and assistance to victims. The Council of Europe adopted in 1995 a Convention on Action against Trafficking in Human Beings, including measures to protect and promote the rights of victims. The OSCE has set up the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, whose mandate is to support the development and implementation of anti-trafficking policies, also promoting a comprehensive approach.49 These initiatives all share a commitment to pursue an integrative approach, covering both prevention, protection of victims and prosecution of criminals. An integrative approach is necessary, considering the wide range of interdependencies in both countries of origin, transit and destination that influence human trafficking. Development in these efforts will be further discussed in Chapters 4 and 5.

2.2.6 Victims of Terrorism In 2005, the CoE adopted Guidelines on the Protection of Victims of Terrorist Acts.50 The guidelines aim to address the specific needs and concerns of victims of terrorist acts, in identifying the means to be implemented to help them, and to protect their 48 2002/629/JHA: Council Framework Decision of 19 July 2002 on combating trafficking in human

beings. 49 http://www.osce.org/cthb/13408.html. 50 See

Guidelines of the Committee of Ministers of the Council of Europe on the Protection of Victims of Terrorist Acts, 2 March 2005. The Guidelines are laid down in the Appendix to this chapter. The CoE also adopted Guidelines on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers at its 804th meeting (11 July 2002), which addresses victim’s compensation issues in paragraph XVII.

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fundamental rights while excluding any form of arbitrariness, as well as any discriminatory or racist treatment.51 The scope of the guidelines is primary (excluding those who only suffer economic loss) and secondary victims (meaning direct victims and their close family, in appropriate circumstances). The Council of Europe was the first European organization to adopt a specific instrument for victims of terrorism. In 2007, the European Union commissioned a group of research institutes to draft EU recommendations for victims of terrorist acts.52 The proposed EU Recommendation on Assistance to Victims of Acts of Terrorism covers a more extensive approach for the assistance to victims of terrorism, including, among other things, provisions relating to psycho-social assistance (both emergency and continuous assistance), access to justice, compensation, information strategies, and access for victims of terrorism to restorative justice practices and procedures. As regards, for instance, emergency assistance, Member States should ensure that evidence-based and well-coordinated emergency assistance, including the provision of information and medical, psychological, social and material support is available. With regard to access to justice and administration of justice, particular focus was put on participatory rights for victims of terrorism as well as on legal aid. In this respect, a more extensive approach than offered in the existing international legal instruments was incorporated in the standards. The compensation provision does not only focus on ensuring adequate financial compensation (also through mass claims), but also calls upon states to consider other reparative measures such as commemorations and tributes to the victims. Finally, restorative justice approaches were included in the proposed EU recommendation. This approach was not explicitly mentioned in the Council of Europe Guidelines (2005), although a reference to mediation, as one form of restorative justice practice, can be found in other legal instruments at CoE level. Finally, within the UN, important developments relating to victims of terrorism are taking place, mainly relating to the establishment of a voluntary trust fund.53 2.2.6.1 Implementation There are still considerable difficulties for victims of international crimes or gross violations of human rights to access effective and enforceable remedies and reparations for the harm they suffered or to access various other rights.54 It is a

51 Preamble,

para. h. Letschert, R.M., Staiger, I., & Pemberton, A. (2010). Victims of Terrorism, Towards a European Standard of Justice, Springer Publishers, also including the Draft Recommendation. 53 In September 2009, the UN organised a High-Level Expert Meeting on Addressing the Needs of Victims of Terrorism, for the report see ‘Supporting Victims of Terrorism’, Available through http:// www.un.org/terrorism/pdfs/UN%20Report%20on%20Supporting%20Victims%20of%20Terrorism pdf (last checked March 2010). See also http://www.un.org/terrorism/workgroup3.shtml. 54 See also Falk, R. (2006). ‘Reparations, International Law and Global Justice’, in: Pablo de Greiff (ed.), The Handbook of Reparations, The International Center for Transitional Justice, Oxford, Oxford University Press, p. 491 and Letschert, R.M. & Van Boven, Th. (2010). ‘Reparation to Victims of Mass Crimes – Challenges involved’, in Letschert et al. (2010). 52 See

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long established principle of international law that the breach of an international obligation by a State entails the duty of the State to make reparations.55 As the result of an international normative process, the legal basis for a right to a remedy became firmly anchored in the elaborate framework of international human rights’ instruments, now widely ratified by States.56 And yet, only few reparations have actually been granted in the aftermath of mass atrocities.57 Mere codification of this general overarching right in various national and international instruments is just a first step. A process of consistent implementation and compliance of the various rights embodied under this general principle is one of the biggest challenges. Although the reparation claim is well-founded in abstracto, in assessing the claim in concreto, we must be cautious to conclude too firmly that a rule of general international law providing the individual or groups of individuals with a right to claim reparations for human rights violations exists.58 As Seibert-Fohr notes, however, practice under the international human rights treaties at least reveals one common denominator; the right to access to judicial remedies which has been widely incorporated into international human rights treaties.’59 Much has been written on the implementation of the far-reaching victims’ provisions in the ICC Statute, both in the Court’s own daily work, as well as on the 55 Factory at Chorzow, Judgment No. 8, 1927, P.C.I.J., Series A, no. 17, at 29. Article 1 of the Draft

Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53rd Session 2001. 56 Boven, T. van (2009). ‘Victims’ Rights to a Remedy and Reparation: The New United Nations Principles and Guidelines’, in: Ferstman, Goetz, & Stephens, Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity, Martinus Nijhoff, p. 21. 57 Roth-Arriaza, N. (2003–2004). ‘Reparations Decisions and Dilemmas’, Hastings International and Comparative Law Review, 157. 58 Authors recognizing an individual right to reparation include Hofmann, R. (2006). ‘Victims of Violations of International Humanitarian Law: Do They Have an Individual Right to Reparation Against States Under International Law’, in: Dupuy, Fassbender, Shaw, & Sommermann (eds.), Common Values in International Law – Essays in Honour of Christian Tomuschat, Zegveld, L. (2003). ‘Remedies for Victims of Violations of International Humanitarian Law’, 851, IRRC, Fleck, D. (2007). ‘Individual and State Responsibility for Violations of the Ius in Bello – An Imperfect Balance’, in: Heintschel von Heinegg, & Epping (eds.), International Humanitarian Law Facing New Challenges, Heidelberg. For the opposite view, see, amongst others, Seibert-Fohr, A. (2009). Prosecuting Serious Human Rights Violations, Oxford, Oxford Press, p. 244, Tomuschat, C. (1999). ‘Individual Reparation Claims in Stances of Grave Human Rights Violations: The Position Under General International Law’, in: Randerzhofer, A. & Tomuschat, C. (eds.), State Responsibility and the Individual, Martinus Nijhoff. More recently, the ILA Committee on Reparations to Victims of Armed Conflict came to the following conclusion: “in view of the relevant state practice and taking note of a strong majority among scholars, the Committee came to the conclusion that, until most recently, international law did not provide for any right to reparation for victims of armed conflicts. The Committee submits, however, that the situation is changing: There are increasing examples of international bodies proposing, or even recognising, the existence of, or the need to establish, such a right,” Hofmann, R. (2010), ‘Reparations for Victims of Armed Conflicts’, Report to the ILA Hague Conference 2010, p. 2 and 14. The Committee has drafted a declaration on the topic of reparation which will be discussed at the 2010 ILA (International Law Association) Conference. 59 Seibert-Fohr, A. (2009, p. 244) and Letschert, R.M. & Boven, T. van (2010). ‘Challenges in Providing Reparations after Mass Victimization’, in: Letschert et al. 2010.

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domestic level when trying perpetrators of international crimes on the basis of universal jurisdiction.60 A more detailed description and assessment of the ICC’s treatment of victims will be given in Chapter 12.61 Victims of human trafficking often encounter various difficulties in claiming their rights. Besides being a victim of a heinous crime causing severe psychological trauma and socio-economic distress, they often fall victim to the non-corresponding prosecutorial interests of the Public Prosecution Office and the interests of the migration officers (see further Chapter 4). Lastly, some words on the implementation of rights for victims of terrorism need to be added. Here the picture is somewhat diffuse. On the one hand, there are the many stories of victims who complain that their rights cannot be applied, often because of the fact that no court cases are being held (due to the fact that the perpetrator died during the attack or cannot be found). In addition, governments often hide in secrecy when it comes to unravelling the narrative about the causes of the attack, for reasons of state security. This leaves victims without their day in court and with many unanswered questions. On the other hand, several of the more recent massive terrorist attacks led to an enormous outbreak of activities by both governmental and non-governmental organizations providing psycho-social assistance or financial support through ad hoc established compensation schemes or charity.62

2.3 From Multi-Level Governance to Multi-Level Implementation What follows from the analysis above is that it is one thing to create an international or regional legislative framework in the form of legal or quasi-legal instruments, but quite another to actually uphold them in practice before domestic or international

60 See

Redress Report, Universal Jurisdiction in Europe, Criminal prosecutions in Europe since 1990 for war crimes, crimes against humanity, torture and genocide http://www.redress.org/documents/unijeur.html. The report gives the following examples; “In Italy, for instance, groups representing relatives of the disappeared in Argentina were denied their applications to join proceedings. In Switzerland, the spouse of a victim who had died in the Rwandan genocide withdrew as partie civile from the case against N. when forced to choose between becoming an ordinary witness and gaining the right to witness protection measures, or remaining as partie civile and not being eligible for such protection. There are also disincentives for victims to apply to be partie civile. For instance, in Belgium if victims initiate an investigation from which no prosecution results, the victims are obliged to pay the costs of the investigation. Any compensation orders made in such cases are also difficult to enforce.” See also Goldmann, M. (2008). ‘Implementing the Rome Statute in Europe: From Sovereign Distinction to Convergence in International Criminal Law?’ Finnish Yearbook of International Law, 16, (2005/2008), 5–29, also for further references. 61 See also the stocktaking study on the impact of the ICC on victims that was carried out for the 2010 ICC Review Conference in Kampala, Uganda, Available at http://www.icccpi.int/iccdocs/asp_docs/ASP8R/ICC-ASP-8-49-ENG.pdf. 62 For examples, see Letschert, R.M. & Ammerlaan, K. (2009). Compensation for Victims of Terrorism, in: Letschert et al.

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courts. The legal consequences of globalization, like the growth in collective legislation and regulation, national and international state and non-state actors, and the rise in the number of international fora for dispute settlement, undoubtedly also influence the implementation of victims’ rights and the accommodation of victims’ needs. What follows also from the discussion of the different victims’ rights instruments in the previous section is that international legal orders are increasingly interrelated – be it through the spread of international standards, transnational effects of domestic provisions or decisions, or the increased weight of international or national non-state actors in the formation of international law.63 To illustrate the latter, NGOs (especially the women’s coalition) played an important role in shaping key provisions in the ICC Statute and in achieving early ratification of the ICC Statute. Within Europe, a network of victim support organizations focusing on victims of terrorism was created and has become an important lobby group for EU activities in this field.64 Also, Victim Support Europe gains influence over the European Union crime victims’ agenda.65 And the already mentioned World Society of Victimology lobbies in UN circles for the advancement of a UN Convention on victims’ rights. This global governance can be defined as the system of rules and institutions established by the international community and private actors to manage political, economic and social affairs on the global scale.66 Common features emanating from global governance are the use of both non-hierarchical and sometimes top-down forms of governing, the emergence of multi-level structures of policy implementation, and the enhanced role of non-state actors within them.67 Through forms of global governance, “state sovereignty becomes multiple, overlapping and shared.”68 Governance, also in the field of victims’ rights, has thus become more and more multi-level. The increasing decision-making powers and coordinating tasks of the

63 See Goldmann, M. (2008). ‘Implementing the Rome Statute in Europe: >From Sovereign Distinction to Convergence in International Criminal Law?’ Finnish Yearbook of International Law, 16, (2005/2008), 5–29. And Boyle, A. & Chinkin, C. (2007). The Making of International Law, Oxford, Oxford Press. 64 See http://www.europeanvictims.net. 65 In 2009, VSE issued a Manifesto calling the European Union to take a number of measures to advance the implementation of victims’ rights. Available at http://www.victimsupporteurope.eu 66 The concept of multilevel governance was first used to describe European integration, introduced by Marks, G., Hooge, L., & Blank, K. (1996). ‘European Integration from the 1980s: State-Centric v. Multi-Level Governance’, Journal of Common Market Studies, 34, 341–78. 67 “Multi-level governance is often referred to as a system of continuous negotiation among nested governments at several territorial tiers, describing how supranational, national, regional, and local governments are enmeshed in territorially overarching policy networks. Multi-level governance emphasizes both the increasingly frequent and complex interactions between governmental actors and the increasingly important dimension of non-state actors that are mobilized in cohesion policymaking and in the EU policy more generally”, see Marks, M. (1993). ‘Structural policy and Multilevel governance in the EC’, in: Cafruny, A. & Rosenthal, G. (eds.), The State of the European Community: The Maastricht Debate and Beyond, Boulder Colorado, Lynne Rienner, pp. 391–411. 68 Held, D. (1995). Democracy and the Global Order, Cambridge Press, in: Aas (2007, p. 148).

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European Union in the area of “freedom, security and justice” can serve as an example.69 On the international level we can refer to the establishment of a permanent International Criminal Court, next to the several temporary special international or hybrid international tribunals.70 The obligations for states to implement the provisions of the ICC Statute in their domestic legislation calls for increased cooperation between different state and non-state actors when it comes to successfully prosecuting perpetrators of international crimes in domestic courts and providing services to victims. A major challenge for the future is that national criminal justice systems not only exchange evidence and transfer offenders across borders but also cooperate regarding the involvement of victims residing outside national territories in the administration of justice. From the evaluations described above, it appears that providing redress to victims in a cross-border or collective context proves to be a particularly difficult challenge. We believe that weak institutional arrangements make international cooperation in addressing protection of victims in these situations difficult to achieve and they impair the implementation of effective legal and normative frameworks to handle the full range of victims’ issues discussed in this book. So far, experience in the field of implementing victims’ rights on the national level teaches that a codification in order to be successful requires a complicated process of “multi-level implementation” in which the state, NGOs, judges, prosecutors, probation officers, police officials, and victim support practitioners all participate. All have an important role in safeguarding that the “chain of protection” remains unbroken.71 But even that still falls far short of effectively turning the rights included in the international documents into a reality, if they would not be supplemented by proper budgets, plans, aims, objectives, targets and timetables for implementation. Our argument is that the implementation of victims’ rights in cases of crossborder victimization or collective victimizations poses additional problems because providing proper assistance, psycho-social, legal or financial assistance, becomes more complicated. Not only do national partners in the field of conventional crime victims need to cooperate, but now coordination and cooperation needs to be established with other national chain partners and international or regional partners that took over some of the state’s responsibilities. The allocation of responsibility for implementation is unclear, forcing victims to go shopping in the wood of global governance. This is even more difficult with the complicated frameworks of access to justice in the international sphere. Between global governance and global crime,

69 For

instance, Europol, Eurojust, the European Arrest Warrant, Frontex and the Police Chiefs Operational Task Force can be mentioned. 70 For an overview, see http://www.globalpolicy.org/international-justice/international-criminaltribunals-and-special-courts.html. 71 See Van Genugten et al. (2007).

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the victim often gets lost in the maze of abundant and heterogeneous victims’ rights (referred to by Aas as global legal plurism)72 and the desperate search for those responsible for upholding them.73

2.4 Concluding Observations The playing field for offenders has expanded from the local or national to the global, leading to new – international and transnational – forms and manifestations of crimes. States with their traditional systems of criminal prosecution and security policies as well as victims have often found themselves powerless to deal with these new forms of crime. Finding solutions for “problems without passports” has proved to be extremely difficult. In addition, the adequate implementation of victim protection schemes for victims of various forms of collective victimizations through terrorist attacks or international crimes such as genocide is a huge challenge. The difficulty for cross-border victims to have access to justice in the country where the crime was committed, in combination with the difficulty to arrest and prosecute perpetrators of transnational crimes (leading to immunity for the perpetrators and impossibility for victims to claim victim status before a court), makes access to victims’ rights often illusory. In line with the spirit of Article 12 of the EU Framework Decision and Article 1 of the EU Directive, there is acknowledgement that additional measures need to be implemented in order to fulfil the needs of victims of cross-border victimization. To address this, we first present some recommendations with regard to the cross-border context, later followed by recommendations relating to collective victimizations. What seems most urgent is that mutual legal aid in the field of criminal justice as foreseen by the Europol and Eurojust initiatives needs to be expanded with mutual victim assistance across borders. As rightly put: “the view is that borderless threats require borderless law enforcement across organizational entities nationally and internationally, and across categories of citizens and non-citizens.”74 This applies as much to the law enforcement side as the victim protection part. This requires the setting up of institutional arrangements, which seem more feasible at this juncture in an EU setting than at the global level. The Spanish Presidency of the EU in 2010 has made the crime victims’ cause one of its priorities.75 The time, we would say, seems right to set up an EU Victims’ Rights Agency to coordinate and monitor the various requirements laid down in the different instruments (or expand the mandate of Europol or Eurojust with a new operational mandate). Through such an Agency, Articles 11 and 12 of the Framework Decision could be brought to life. This agency 72 Aas

(2007, p. 148). Fraser who notes that within the globalised justice framework, it is no longer clear what the scope of justice is, and who counts as its subject. Fraser, N. (2005). ‘Reframing Justice in a Globalized World’, New Left Review, 6, November–December, pp. 69–88, in: Aas (2007, p. 187). 74 Cited in Aas, K.F. (2007, p. 106). 75 http://www.apav.pt/portal_eng/pdf/programa_eu_2010_esp.pdf. 73 See

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could also take the lead in assuring compensation for cross-border victims on an equal footing across the Union, e.g. by setting up a complementary EU compensation fund. As argued above, the EU Directive which prescribes the creation of assisting and deciding authorities, is no guarantee for such equal playing field for cross-border victims. Moreover, an overall improvement of knowledge and awareness amongst governmental and non-governmental institutions regarding cross-border victimization is needed. As recommended by Victim Support Europe, to address this, the EU could for instance arrange educational networks and lectures to improve coordination of cross-border operation and procedures between all bodies involved in giving support to victims.76 On a more global level, any institutional reform seems an unrealistic goal for the immediate future. However, much could be gained if existing bodies, notably UN bodies working in the crime field, such as the Crime Commission, would strengthen their efforts to enhance cooperation between the various international and national organizations and other actors in the victims’ rights field. This includes intergovernmental as well as non-governmental actors. As to the latter, it would be important to transcend the level of cooperation, and make national as well as international and regional NGOs full co-owners/stakeholders of the victims’ rights agenda. They might be able to infuse the deliberations of these bodies with a people-oriented discourse that could help to overcome politically inspired deadlocks or stalemates. There is little doubt that the elaboration and adoption of a future UN Convention would push forward the implementation of victims’ rights. This would be even more the case if it retained the proposed monitoring mechanism of the Committee on Justice and Support for Victims of Crime and Abuse of Power. Ideally, such Committee would enter into a permanent dialogue with both governmental and non-governmental organizations. Also, including a Universal Periodic Review Mechanism as created by the UN Human Rights Council as one of the monitoring methods of the convention could enhance the implementation of victims’ rights.77 We do, however, recommend – if the Draft would ever be seriously discussed at the UN – to reflect upon the need to add a section on both the cross-border and collective victimization contexts and what such victimizations entail for the underlying state obligations in guaranteeing victims’ rights. Reference should be made to the ICC provisions, for instance the possibility to appoint common legal representatives of communities of collective victims. In addition, the establishment of the trust fund in combination with the reparations function of the ICC constitutes an unprecedented step forward for the rights of victims within international criminal law. Such 76 APAV-INTERVICT

Report, Recommendations Victims Support Europe on the basis of the report: p. 177. 77 The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all 192 UN Member States once every 4 years. The UPR is a State-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations.

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provisions could be of great benefit for victims of terrorism or other forms of organized crime. This would make the future UN Convention better equipped to serve the needs of global crime victims. In addition, it would also correspond to the human security concept as discussed in the following chapter. As indeed, parallel to transformations in the security domain to address new forms of crime, criminal justice has become more peopleoriented. If the concern for human security implies a need of developing global justice, such justice needs to be victim-centered to be viable and sustainable. A further analysis of collective victimization by a combined human security and victimological approach can significantly contribute to understanding the unique situation of human exposure to threats, risks, trauma and fear, and how to react appropriately to (re) gain security.78 The human security concept will be further elaborated in the next chapter, from which it will also become clear that access to victims’ rights in the less affluent countries is even more challenging than in most developed countries. Globalization has enabled the creation of formal and informal networks which allow international and national NGOs to engage with global agendas. Through this networking process, globalization also offers empowerment possibilities for those marginalized groups that strive for the same cause. On the other hand, through globalization, a complex system of multi-level governance came to the fore and a multi-level legal framework has been created, also complicating effective implementation of victims’ rights. However, since no national government alone can hope to tackle the shadow sides of globalization, multi-level governance to advance the interests of victims of global threats is inevitable. To make this a success, requires a coordinated and cooperative approach towards lawmaking, policy and institutional design, and an increased role for non-state actors.

78 See

also Ewald, U. (2002). ‘Victimization in the Context of War’, European Journal of Crime, Criminal Law and Criminal Justice, 2–3, 91 and Letschert et al. (2010).

Chapter 3

Human Security and the Emergence of a Global Conscience Ralf Bodelier

3.1 Introduction Since the 9/11 attacks in 2001 and the tsunami on Boxing Day 2004, the focus of policy makers, academics and intellectuals has been moving steadily towards new cosmopolitanism.1 After the Fall of the Berlin Wall in 1989 the process of globalization had been the point of focus. Today, however, attention has shifted towards the cosmopolitan mindset essential to this process of globalization. This cosmopolitanism is new in two respects. It unites the interests of the Self, firmly rooted in one’s own region and nation, with those of the Other, who is seen as member of the global community. But new cosmopolitanism also stands for two different phenomena: global fear and global empathy. Fear results in an increased concern for the self; empathy results in an increased concern for the other. A central concept related to this concern for the self and the other is dignity. The self and the other possess an intrinsic dignity that has to be safeguarded. New cosmopolitanism goes beyond mere philosophizing. It has brought forth at least two policy concepts, human development and human security. Where human development focuses exclusively on the interests of the other, human security deals with both the interests of the other and those of the self. Of the two, human security is therefore more closely linked to new cosmopolitanism. Due to its exclusive focus on the interests of the other, it was possible to translate the human development program into a Human Development Index and incorporate the program into the Millennium Development Goals. Impressive global support followed. Human security, on the other hand, did not easily translate R. Bodelier (B) Research Fellow at Intervict, Valentijnstraat 19, 5014KE Tilburg e-mail: [email protected] 1 I realize that the choice for 9/11 and the 2004 tsunami is debatable. To illustrate an idea similar to the one in this paper, Derrida & Habermas choose two different but equally impacting incidents in the spring of 2003. The security aspect is the morally obscene support (in their opinion) of several European countries for the war US president Bush wages on Iraq (January 2003). The concern aspect is represented by the protests against this very war in London, Rome, Madrid, Barcelona, Berlin and Paris on 15 February 2003. Habermas, Jürgen & Jacques Derrida (2003). ‘Nach dem Krieg: Die Wiedergeburt Europas’, Frankfurter Allgemeinen Zeitung, 31 May.


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into concrete tools or applications. There are no Human Security Goals, there is no Human Security Index, and only relatively few have heard of human security at all. Why is it that this concept does not take hold; it fits new cosmopolitanism like a glove. What has to be done to flesh it out? A possible answer can be found in integrating the two concepts and in seriously rethinking and researching its origins, i.e. new cosmopolitanism and its related concept dignity.

3.2 A New Cosmopolitanism Whereas the last decennia of the twentieth century were characterized by globalization, the first decennium of the twenty-first century clearly shows increased interest in the mindset of globalization: cosmopolitanism. Or rather: New Cosmopolitanism. Cosmopolitanism is a moral and political concept. The concept of an ideal community, which contrary to traditional communities, does not exist by virtue of excluding the other. Whereas a traditional community is organized around exclusive concepts like family, tribe, people, religion or nation, and ignores, excludes, conquers, assimilates or even kills those that do not belong to this family, tribe, people, religion or nation, cosmopolitanism focuses on an inclusive principle, on the belief that a number of basic human values allow people to unite. These human values are equality, mutual respect, tolerance, justice, non-violence and compassion. In turn, these human values protect that what makes man human: his intrinsic dignity; the fact that he can never be a means to an end – he can only be the end itself. Immanuel Kant clearly distinguishes between dignity and value. Whereas values are always ascribed by people, human dignity is original, it is an absolute inner value. The human values that aim to protect human dignity therefore coincide with what Kant called “the moral law within me,” as a compelling and basic notion of right and wrong; A notion that without being hampered by religious or regional moral codes or views includes a fundamental idea of what our society is and what it should be.2 A global community based on dignity, or rather human dignity, protected by human values. This is the essence of cosmopolitanism. New cosmopolitanism claims that this rather abstract form of global citizenship can exist next to a mild form of patriotism.3 “What makes modern cosmopolitanism modern, is not so much that it stands for a universal human community over and above local loyalties, but

2 Obviously, this view does not go unchallenged. Martha Nussbaum painfully points out that Kant is referring to a very specific member of the human race: the intelligent, active, male citizen. Women, the handicapped, and ‘non human animals’ do not enter Kant’s definition. This, however, did not stop John Rawls from building the most influential defence of justice in the twentieth century entirely on Kant’s views. Nussbaum, Martha (2006). Grensgebieden van het Recht. Over sociale rechtvaardigheid, Amsterdam, p. 57. 3 Only recently fiercely defended by Kwame Anthony Appiah, commuting between his Ghanese place of birth Kumasi and global Princeton. Appiah, Kwame Anthony (2006). Cosmopolitanism. Ethics in a World of Stranger, London.

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rather that it seeks to reconcile the idea of universal species wide human solidarity with particular solidarities that are smaller and more specific than the human species,” states sociologist Robert Fine.4 Philosopher Alain Finkielkraut chooses the following words: “To give the other what he is due, to honour him as a human being and as other, to acknowledge the similarities and at the same time welcome the differences between people, who would not embrace this great ambition?”5 The main difference between our time and Immanuel Kant’s eighteenth century is that exploring the world is no longer the exclusive domain of a select group of intellectuals, merchants or the establishment. There are practically no limits to travel, economies the world over have almost completely merged into a global economy, global networks of the Internet, radio, television, telephone and newspaper; all these phenomena make it possible for increasingly large numbers of people to follow what is happening in the lives of others. It also opens ways to intervene in the lives of others or to assume a degree of responsibility. In a global community it is also possible to finally be a true kosmou politês. For the first time in history we can actually test the cosmopolitan philosophy in real life. “The important fact now is that the human condition has itself become cosmopolitan,” writes Ulrich Beck, one of the world’s most leading thinkers where globalization is concerned: We need only highlight the fact that the most recent avatar in the genealogy of global risks, the threat of terror, also knows no borders. The same is true in the protest against the war in Iraq. For the first time a war was treated as an event in global domestic politics, with the whole of humanity participating simultaneously through the mass media. (. . .) In this way cosmopolitanism has ceased to be merely a controversial rational idea; in however distorted form, it has left the realm of philosophical castles in the air and has entered reality.6

Since the start of the new millennium new cosmopolitanism has become the subject of intellectual discourse among a wide range of academics; not only Martha Nussbaum, Robert Fine, Kwame Anthony Appiah and Alain Finkielkraut, but also Peter Singer,7 Amartya Sen,8 Jacques Derrida,9 & Jürgen Habermas.10 They all elaborate on the idea that this global view, this cosmopolitan state of mind, is

4 Fine,

Robert (2007). Cosmopolitanism, London, Routledge, p. 15.

5 According to Alain Finkielkraut. Finkielkraut, Alain, & Peter Sloterdijk (2005). De Hartslag van

de Wereld, Nijmegen, p. 37. Ulrich (2007). The Cosmopolitan Vision, Cambridge, Introduction. 7 The world can no longer do without global morality, states ethicist Peter Singer. In earlier days morality could hide in the extensive family, the village or the region; today the world is a global village. Therefore, our morality has to be a global morality. ‘We must develop an ethical basis on which to build a communal world in the next century.’ Singer, Peter (2002). One World: Ethics and Globalization, New Haven. 8 Sen, Amartya (2006). Identity and Violence: The Illusion of Destiny, New Delhi. 9 Derrida, Jacques (2001). On Cosmopolitanism and Forgiveness (Thinking in Action), London and New York, Routledge. 10 Habermas, Jürgen (2001). The Postnational Constellation, Cambridge, MIT Press. 6 Beck,

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essential in order to recognize and address global issues. Moreover, they are all convinced that – in whatever form – this new cosmopolitanism is here to stay. Obviously, this view will also meet fierce opposition. In the eyes of quite a few skeptics cosmopolitanism is a runaway project of a small minority who will profit from the process of globalization,11 but who have completely lost touch with “ordinary citizens” and their fears, needs and interests. To them cosmopolitanism represents estrangement and artificiality. The American political scientist Benjamin Barber, for instance, labels cosmopolitanism as “McWorld” and uses the phrase “toxic cosmopolitanism of global markets” to express his disapproval.12 “In an overly tribalized world, cosmopolitanism might be a useful counterpoint,” states Barber. “But ours is a world disenchanted in which Gemeinschaft and neighborhood, have for the most part been supplanted by Gesellschaft and bureaucracy. What we require are healthy, democratic forms of local community and civic patriotism rather than abstract universalism and the thin gruel of contract relations.”13 Skeptics like Barber are convinced of the fact that cosmopolitanism and e.g. nationalism or regionalism, are non-comparable phenomena. Whereas the latter are coloured by emotion and originality, cosmopolitanism is primarily a project of detached intellectuals. These skeptics doubt the globalization of morality and warn against overrating the powers of compassion. Cosmopolitan projects, they state, would have to be discontinued, starting with the European Union.14 However, this proposition that a cosmopolitan view were an artificial construct which could never compare to more direct forms of human compassion – e.g. at the level of a small village community – does not show great knowledge of historic developments. At one time, at the transition from village Gemeinschaft to national Gesellschaft, a similar reaction was seen: nationalism was thought to be strange and artificial. Nowadays it is completely natural for almost each individual to consider himself subject of a nation, and to stand up for those fellow subjects that live within the boundaries of that nation. Therefore, there is little reason to assume that this circle of sympathy would not spread. At this point I could put forward the sociological question whether or not this new cosmopolitanism is indeed spreading in this first decennium of the twentyfirst century. The question, whether or not the intellectual debate actually represents a social development or – as is suggested by the skeptics – whether it is merely limited to a prominent but small group of western intellectuals. I will try to answer this question at a later point in this paper. First, I choose to put forward a rather more philosophical question. How relevant is it to actually know whether or not the 11 Bovens, Mark & Anchrit Wille (2009). Diploma Democracy. On the Tensions between Meritocracy and Democracy, Verkenning for the NWO programme Contested Democracies, Utrecht/Leiden. 12 Barber, Benjamin R. (1996). ‘Constitutional Faith’, in Martha C. Nussbaum, For Love of Country? Boston, Beacon Press, p. 36. 13 Ibid., p. 31. 14 Ritter, Henning (2004). Nahes und Fernes Unglück. Versuch über das Mitleid, München, Beck. Cuperus, René (2006,) ‘Europe and the Revenge of National Identity’, in: René Cuperus, K.A. Duffek, E. Fröschl T. Mörschel (eds.). The EU. A Global Player? Münster, pp. 129–144.

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number of protagonists of cosmopolitan morality is indeed increasing? It might be much more relevant to know about the organizing potential of new cosmopolitanism. Or, to be like Robert Fine15 and rephrase a quote by Immanuel Kant, who wrote in 1784, commenting on his age: “If it is now asked whether we at present live in an enlightened age, the answer is no. But we do live in an age of enlightenment.” Today, Fine repeats Kant’s words: We do not live in a cosmopolitan age but we do live in an age of cosmopolitanism. As things are, we have a long way to go but we do have distinct indications that the way is being cleared for a cosmopolitan future so long as artificial measures are not deliberately adopted to prevent it. The age of cosmopolitanism may be understood more as a normative perspective for viewing the potentialities and necessities of our age than as an objective characterization of the age itself.16

Fine makes an important observation. By surpassing the question whether or not we will become cosmopolites, he defines the phenomenon as a magnetic field which – in an age of globalization – organizes our way of thinking. Cosmopolitanism provides us with a tool to understand the start of the third millennium. Albeit that the boundaries of cosmopolitanism are still vague and that, for now, we can only speak of it in probing terms. This open attitude towards new cosmopolitanism seems right to me. The concept is broad (ranging from a moral understanding between individuals, aimed at maintaining dignity, at any one place on this earth, to a global legal order and a political ideology). At the same time cosmopolitanism is “old,” often discussed and judged, subject to traditional definitions and therefore not easily transferred into a promising subject of well-defined research or policymaking. At this point in time, cosmopolitanism is mainly to be seen as a sign of the times, a sociological umbrella term and perhaps even a rallying cry that defines an actual development in general terms and assigns it a number of general characteristics. Two of these characteristics are the following. First of all there is the unification of the individual’s global human dignity with the need for local patriotism. The second characteristic is the fact that it moves around two phenomena, viz. a growing need for security and a growing need for development, a worldwide realization of global risks and an equally worldwide realization of global suffering.

3.3 Global Fear and Concern for the Self Around the globe, the attacks of September 11 awakened an already existing but so far dormant fear17 and subsequently these attacks mobilized the global concern for the self. For many the Al Qaida attacks were a first confrontation with what we could describe as mutual vulnerability. Suddenly we realized that globalization not only meant buying tickets in Mumbai for a New York concert; we saw that it works 15 Fine,

Robert (2007). Cosmopolitanism, London, Routledge, p. 33.

16 Ibid. 17 Moisi, Dominique (2009). De Geopolitiek van Emotie. Hoe culturen van angst, vernedering en hoop de wereld veranderen, Amsterdam, p. 145.

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both ways. Terrorists from Jeddah appeared to have unlimited access to airports in New Jersey. It was this realization that Ulrich Beck described in its basic form in his mid-eighties book Risikogesellschaft. Auf dem Weg in eine andere Moderne.18 Contrary to what the title seems to suggest, this book does not state that we live in an ever more risk-ridden society. The point is, Beck reasons, that we become more and more conscious of shared risks. This in its turn results in increasingly organizing our society around these risks. Many of these risks, we have come to realize, are largely self-induced. Modernity has not only brought us enormous advantages, it also increased the possible occurrence of large-scale accidents. This realization makes us sensitive to the achievements of our day. Beck’s “andere Moderne” is thus a reflexive modernity; a modernity that continually scrutinizes itself. The September 11 attacks showed the vulnerability of this modernity. In one crushing blow the crashing planes destroyed the nationwide misconception that modern day dangers could be successfully averted on the national level. The dangers of a high tech, state of the art society can only be understood and overcome globally. More than 20 years after the publication of Risikogesellschaft the risks have proved to be global, viz. climate change, SARS, avian influenza or bird flu, international terrorism. What is more, September 11 also triggered the universal realization that these risks were here to stay. We no longer live in a Risikogesellschaft – Risk Society – but in a Weltrisikogesellschaft – World Risk Society.19 Rather pleasantly surprised, Beck states that on the rebound this increasing global risk awareness guides us towards a cosmopolitan society; a society which searches global solutions for global issues, at the same time critically reflecting on our global modernity. But there is more. Beck’s cosmopolitan view not only focuses on concern for the self, i.e. the concern stemming from risk realization. He also expresses a wish for revival of a historic “European” form of cosmopolitanism. A global citizenship which shows concern for the other, for the immigrant and the stranger, whom we need to treat with respect and empathy for his being different.20 Ulrich Beck was a true pioneer in 1986. Perhaps international society was not ready to receive and notice his views. Not surprisingly, his Risikogesellschaft was not translated in English until a good 6 years after its first publication.21 In 1993, a year after Beck’s English translation, German essayist Hans Magnus Enzensberger wrote his Aussichten auf den Bürgerkrieg. Enzensberger noticed global chaos and situated it in a region where people were less likely to feel at risk: in Western Europe. He saw advancing terrorists and cunning Mafiosi. He introduced his readers to ruthless skinheads, drugs gangs, vandals and death squads. And it appeared 18 Beck,

Ulrich (1986). Risikogesellschaft. Auf dem Weg in eine andere Moderne. Frankfurt am Main. 19 Beck, Ulrich (2007).Weltrisikogesellschaft, Frankfurt am Main. 20 An argument soon subject to the criticism that Beck allowed himself to be led by his cosmopolitan ambition. That – in his desire to establish a globalist outlook – Beck seemed to have forgotten his critical analysis of the risk society. Martell, Luke (2008). ‘Beck’s Cosmopolitan Politics’, Contemporary Politics, 14, 2, 129–43. 21 Beck, Ulrich (1992). Risk Society: Towards a New Modernity, New Delhi.

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that they mainly came from abroad; from Eastern Europe, the United Kingdom and Latin America. Enzensberger not only saw German left-wing radicals celebrate their atavistic freedom in squatted properties. He also saw Polish car thieves hang around covered car parks, he saw Columbian drugs cartels ship their goods into Europe and he read how British office workers turned into football hooligans over the weekend.22 Enzensberger concluded that Europe – becoming ever more globalized – was entirely helpless against this “pandemonium of mindless violence, drugs tourism, football supporters, alcohol abuse, child porn, gunrunning, hypodermics, broken beer bottles, dildos and guns,” as Jaffe Vink – a Dutch fellow-publicist – described it several years later.23 What Enzensberger did for Europe, American journalist Robert Kaplan did for the United States. Kaplan traveled through West Africa when researching his article and (afterwards) his book The Coming Anarchy (1994). He predicted that what he saw in Liberia and Sierra Leone, would also become America’s fate: West Africa is becoming the symbol of worldwide demographic, environmental, and societal stress, in which criminal anarchy emerges as the real ‘strategic’ danger. Disease, overpopulation, unprovoked crime, scarcity of resources, refugee migrations, the increasing erosion of nation-states and international borders, and the empowerment of private armies, security firms, and international drug cartels are now most tellingly demonstrated through a West African prism. West Africa provides an appropriate introduction to the issues, often extremely unpleasant to discuss, that will soon confront our civilization. To remap the political earth the way it will be a few decades hence – as I intend to do in this article – I find I must begin with West Africa.24

Now that the story of the risk society had turned into a cruel and unwelcome reality, a growing need for a new perspective on security became more and more obvious. Whether or not Enzensberger and Kaplan were right, whether the insecurities and risks of our global society were indeed increasing, it hardly mattered. Beck’s global risk society had become a political issue, which no government could ignore any longer. Due to the fact that the threat no longer came from government armies (cf. the Cold War), but from private armies, security firms and international drugs cartels (Kaplan) and skinheads, vandals and death squads (Enzensberger) retreating to the safety of the state’s national borders was not enough. Even less so because now the front line was not made up of brave warriors but of ordinary people who were confronted with drugs, child porn and guns while at work or engaged in leisure activities. State Security was clearly no guarantee for the personal security of individuals, no matter where on the globe they found themselves. For the first time in modern history the national borders – sacrosanct since the Treaty of Westphalia in 1648 – were deemed less important than the safety of those living within these borders. Human security, argued Canadian Foreign Minister Lloyd Axworthy, one of its 22 Enzensberger,

Hans Magnus (1993). Aussichten auf den Bürgerkrieg, Frankfurt am Main. Jaffe (2001). Brief aan mijn Dochter. Amsterdam. 24 Kaplan, Robert (1994). ‘The Coming Anarchy’, The Atlantic Monthly, February.www. theatlantic.com/doc/199402/anarchy/2 (Accessed 20 August 2008). 23 Vink,

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most prominent advocates, “(It) is, in essence, an effort to construct a global society where the safety of the individual is at the centre of international priorities and a motivating force for international action.”25

3.4 Global Empathy and the Concern for the Other The global concern for the other became apparent in the wave of charity that rolled over the world after the December 2004 tsunami. Over 230 thousand lives were lost; one million were left in despair and shock. Their fate triggered a so far unheard of need to help others. Largely in that part of the world where people have access to the global media networks of CNN and BBC. The part with economic, technological and cultural ties: the global part. This part of the world donated no less than thirteen billion dollars in aid for the victims of the tsunami. Many traveled to Asia over their Christmas holidays to help tsunami victims. Skeptics were quick to point out that tsunami victims received these billions of dollars because of the rosy Christmas mood, the horrifyingly vivid images of the tsunami and the fact that many had visited the holiday destinations of Thailand and Sri Lanka. They were not entirely wrong. Even so, this generosity proves that not only our concern but also our need to help turns global. In an often-cited comment which he wrote shortly after the tsunami, British historian Timothy Garton Ash used the term moral globalization for this phenomenon.26 According to Ash we feel a moral obligation towards those who are less fortunate, regardless of where they find themselves on this globe. Ash turned out to be right sooner than he would have hoped. October 8, 2005: the earth moved in the Pakistani part of Kashmir. Eighty thousand lives were lost. In November, a month after the quake, almost six billion dollars in aid had been put aside. This time the money was not meant to help countries well known by tourists. And this time neither CNN nor BBC presented spectacular television coverage of this natural disaster. Not one of the victims was a white holidaymaker. All of the victims appeared on TV were bearded orthodox Muslims who lived in an inaccessible mountain area where few tourists ever set foot. Ash observed that “rich westerners increasingly identify with those living in other (far away) parts of the world, towards whom they feel a moral responsibility.” Again, he was probably right. Neither the global concern for the self nor the global concern for the other can be separated from the process of globalization. People from the south and people from the west will undeniably enter each others “worlds” and because of their mere presence they create the conditions to know the other(s) as fellow humans.

25 Lloyd Axworthy talks to Canada World View. http://www.dfait-maeci.gc.ca (Accessed on 14 August 2008) 26 Garton Ash, Timothy (2005). ‘What Will Be Left? This wave of global solidarity must not end in a detritus of broken promises’, The Guardian, 6 January.

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He who is conscious of the vulnerability of others – even if they live on the other side of the globe – is likely to commit himself to these others. American psychologist C. Daniel Batson proposed that empathy, the ability to share and understand another’s feelings and emotions, triggers altruism, the wish to support and aid the other. Batson calls this his “empathy – altruism hypothesis.”27 People who feel genuinely committed to others often feel the need to help them; especially when they have the means to do so. Even though they personally have no ties whatsoever with the person who caused the suffering, nor (do they have) any personal ties with the victim. Even possible drawbacks connected to this help are taken for granted. According to Daniel Batson, we have to amend our view of human motivation. The idea that people are solely motivated by personal gain is obsolete. The more people are able to understand another’s situation, the sooner they are prepared to lend support.28 Sociologists have not yet named the phenomenon, but it appears that we not only live in a global risk society, but also in a global care society. New Cosmopolitanism is only one of the terms used to describe this growing global care. We also come across: Global Citizens Movement, Ethical Globalization, Moral Cosmopolitanism, Cosmopolitan morality, Global Civil Society, Moral Globalization or New Cosmopolitan Ethics. Whatever the term, we can safely state that the phenomenon is triggered by the fact that we are increasingly aware of people on the other side of the globe. We are quite literally more and more “exposed” to the other. Not only to the danger he possesses, also to his cry for help and protection.29 The nerve center of these needs and desires is globalization itself. Or rather: the capitalist structure that enables modern globalization. Although an unrestricted orientation on market values can cause severe human suffering, at the same time the market acts as a giant global magnet, pulling people towards each other. The market works as intermediary, as a nexus, which triggers moral action. Sociologist Natan Sznaider claims that global capitalism draws more and more people into our circle of sympathy. “The market seems consistently to excite a politically significant mass of people to believe that cruelty and harm can and must be remedied. And, crucially, the market provides the means to do something about it. It brings people inside the circle not only of sympathy, but of effective sympathy.”30

27 Batson,

C. Daniel (2004). ‘Not All Self-Interest After All’. Economics of Empathy-Induced Altruism, Invited paper Kellogg School of Management, 17 October. 28 Batson et al., C. Daniel (1981). ‘Is Empathic Emotion a Source of Altruistic Motivation?’, Journal of Personality and Social Psychology, 40, 290–302. Toi et al M. (1982). ‘More Evidence that Empathy is a Source of Altruistic Motivation’, Journal of Personality and Social Psychology, 43, 281–292. 29 ‘And this is one of the key social foundations of cosmopolitanism. By moral cosmopolitanism, we mean the belief that our duty to ameliorate the suffering of individuals is more important than any artificial political barrier that may stand in our way.’ Levy, Daniel & Natan Sznaider (2004). ‘The Institutionalization of Cosmopolitan Morality: The Holocaust and human rights’, Journal of Human Rights, 3, 2, 143–157. 30 Ibid., 143–157.

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This contemporary combination of global fear and global care becomes apparent in the growing involvement of the west with the south. The most obvious developments occur on the part of a growing number of IGO’s (Intergovernmental Organizations) like UNHCR, the World Bank or the movement that led to the establishment of the International Criminal Court. Far more interesting than these largely invisible organizations, is western involvement that travels through newspapers, television and the Internet and thus reaches the public in their homes. Only public reactions to these global activities may give an indication of the extent to which this “new cosmopolitanism” finds fertile ground. And these public reactions exist. First, there is ethical consumerism. As one of the most visible expressions of ethical consumerism, Fair Trade has been reporting impressive growth figures, year after year. In 2006 Fair Trade showed a 42% growth worldwide.31 Second, there is public support for development aid. “There is concern among the public about aid effectiveness, but it exists alongside continued high support for aid.”32 A third reaction is widespread support for humanitarian interventions in conflict areas. Military intervention in war regions, intended to open the way for humanitarian aid, has the support of nearly 75% of the Dutch.33 Nearly 70% of all US citizens feel positive about sending troops to Africa in order to facilitate humanitarian military interventions when genocide occurs. Fourth, an increasing number of people support an INGO; an International Non-Governmental Organization, ranging from Abolition 2000 to the World Federation of Trade Unions. In 2008 there were approximately sixty thousand international organizations; in 1985 the UIA reported 20,000. In 1910 there were a mere 200.34 A fifth reaction is support for CSR. Corporate social responsibility is what corporations contribute to the humanitarian empire. When CSR came into existence in the seventies of the last century, companies felt the pressure of their stakeholders when it came to sustainable entrepreneurship. Towards the end of the twenty-first century CSR became a matter of course. Stuart Hart calls this sea change “From Obligation to Opportunity”; for companies new opportunities presented themselves with this concern for environment and human rights.35 A sixth phenomenon is the small charities. A rough estimate shows that a small country like the Netherlands has between ten and fifteen thousand of these small (aid) charities.36 Most of these private initiatives originated in the nineties and

31 http://www.fairtrade.org.uk. 32 Solignac

Lecomte, Henri-Bernard, Ida Mc Donnell, & Liam Wegimont (2003). Public Opinion and the Fight against Poverty, OECD, Paris. 33 NCDO . Burgers over de Ontwikkeling in de Wereld en het Nederlandse Buitenlandbeleid. Participatie NCDO Mentality-meting, 2005. 34 http://www.uia.be. 35 Hart, Stuart (2005). Capitalism at the Crossroads. The unlimited business opportunities in solving the most difficult problems, Upper Saddle River, NJ, Pearson Education Inc. 36 NCDO . Draagvlak voor Ontwikkelingssamenwerking binnen Nederland en de Rol van ncdo. Amsterdam 2005.

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numbers are still growing. Faced with dire needs of people on the other side of the globe, increasingly more people decide to do “just something.”37 The seventh public reaction is philanthropy. Private Americans donated 34.8 billion dollars in third world aid in 2006, set against 23.5 billion in official development aid by the US Government.38 Researchers predicted at the close of the twentieth century that philanthropic US aid donations will reach fifty billion a year in 2010. Although there is hardly any comparable research in Europe, expectations are that in Europe, too, the situation looks promising. We might find ourselves on the eve of a “Golden Age of Philanthropy.” People in developing countries can count on considerably more concern, money and protection in the future.39

3.5 Human Development New cosmopolitanism, a twentieth century phenomenon with a focus on human values which protect human dignity, has so far brought us two major concepts: Human Development and Human Security; two concepts that place the concern for the self and the concern for the other in a global perspective and aim to translate them into workable strategies. The first and most widely known concept is that of human development. This concept continually stresses the unacceptability of extreme poverty. Viewing the world in terms of human development started in the early eighties of the last century. Before that, it was customary to define development in terms of economic development, i.e. economic growth and national income. Human development left this economic perspective and began to focus on a much wider sense of development. Using the motto People First, human development pioneers stated that development first and foremost has to focus on actual people and on the potential of people to bring about actual change in their situation. The United Nations Development Program states on its website that human development stands for “creating an environment in which people can develop their full potential and lead productive, creative lives in accord with their needs and interests. People are the real wealth of nations. Development is thus about expanding the choices people have to lead lives that they value.”40 The human development concept was designed in 1980 by the Pakistani economist Mahbub ul Haq and has since been used by the UNDP in its annual Human Development Reports. Ul Haq’s human development vision is to a large

37 Vossen,

Mirjam (2007). Eerste Hulp bij Ontwikkelingswerk, Tilburg.

38 Index of Global Philanthropy 2008 Hudson Institute. Press release ‘Index of Global Philanthropy

shows innovative private giving transforming aid to developing countries’, 12 May 2008. http://www.hudson.org (Accessed 2 September 2008). 39 Havens, John J. & Schervish, Paul G. (1999). Millionaires and the Millennium: New Estimates of the Forthcoming Wealth Transfer and the Prospects for a Golden Age of Philanthropy, Boston. 40 UNDP. http://hdr.undp.org/en/humandev/ (Accessed 5 October 2010).

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extent based on the capabilities approach developed by Amartya Sen.41 This economist, who finds a supporter in philosopher Martha Nussbaum,42 believes development should not be focusing on e.g. economic growth or alleviation of hunger and disease; in fact it should augment people’s potential and thus enable them to develop themselves. Sen states: Capabilities are the range of things that people can do or be in life. The most basic capabilities for human development are to lead long and healthy lives, to be knowledgeable, to have access to the resources needed for a decent standard of living and to be able to participate in the life of the community. Without these, many choices are simply not available, and many opportunities in life remain inaccessible.43

The most tangible and widely known implementation of the human development concept is found in the Millennium Development Goals.44 Contrary to earlier economic programs, these goals embody the first development plan that is closely connected to new cosmopolitanism; this is mainly due to the practical approach of “Human Development Meets Result-Based Management.”45 It (the plan) also fits in with moral globalization, the willingness of those in the wealthy and safe north to dedicate themselves to less poverty and insecurity in the south. Many western nations use these goals to prioritize within their aid programs. The Netherlands, for instance, chose HIV/AIDS, water, environment and reproductive health as main objectives of their aid policy, not arbitrarily but mainly because they contribute to the Millennium Goals.46 The results, and – no less important – the lack of results can be found in the Human Development Index. This HDI, which was developed in 1990, compares three sets of data, viz. life expectancy, education and purchasing power and translates them into a global ranking of 177 nations (out of a total of 192). These nations can then be subdivided in three categories: nations showing (very) high human development, medium human development or low human development. In this last category we find no less than 25 nations that – without exception – are located on the African continent (HDI 2008). With a minor reservation, it is safe to state that most people in these 25 nations must be categorized as belonging to the “absolute poor.” Efforts to stimulate human development should therefore first and foremost be directed at these absolute poor, as is suggested by advocates of the

41 Sen,

Amartya (1999). Development as Freedom, Oxford. Martha C. & Amartya Sen (eds.) (1993). The Quality of Life, Oxford, Clarendon

42 Nussbaum,

Press. 43 http://hdr.undp.org/en/humandev/ (Accessed 3 January 2009). 44 Human Development Report, 2003, Millennium Development Goals: A Compact Among Nations to End Human Poverty, New York. 45 Hulme, David (2007). The Making of the Millennium Development Goals: Human Development Meets Results-Based Management in an Imperfect World, Brooks World Poverty Institute BWPI Working Paper, 16 December. 46 Policy document Foreign Aid 2007–2011 Dutch Ministry of Foreign Affairs. http://www. minbuza.nl (Accessed 11 January 2009).

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Millennium Development Goals. These efforts should certainly not be directed at those inhabiting the remaining 152 nations. Accelerating progress in human development and eradicating the worst forms of human poverty are within our reach, despite challenges and setbacks. We know what to do. And the world has the resources needed to do it. Success is now to be found in strengthening partnerships, building political momentum for reform and pledging strong commitments for action followed by real action.47

The realization of the Human Development Index by means of the Millennium Goals is widely supported, by the United States, countries in the EU and Japan, but also by such institutions as the World Bank, the IMF and the OECD. Through these Millennium Goals the human development concept also attracts a lot of support and attention from the general public.48 The June 2005 Live 8 concerts – Make Poverty History – were aired by 182 television channels and 2000 radio stations. The broadcasters stated they reached three billion people.49

3.6 Human Security Not only human development but also human security is closely connected to the human values of new cosmopolitanism. Human security may even be more closely connected, although the concept is relatively new and not as widely known as human development. In a way human security is both a further specialization and an extension of human development. It was Mahbub ul Haq, the designer of the Human Development Index, who placed human security on the global agenda. In the 1994 Human Development Report New Dimensions in Human Security50 he again adheres to the People First concept. However, he now argues that realistic options for people to actively change their situations should also include a security component. Where human development focuses exclusively on a long and healthy life, on education and access to health care, human security also mentions violation of human rights and vulnerability caused by crime and political violence. The most widely accepted and discussed concept of human security51 includes seven subcategories: 1. Economic security, 2. Food security, 3. Health security, 4. Environmental security, 5. Personal security, 6. Community security and 7. Political security. The 47 Human Development Report 1998, Chapter 1. The state of human development, New York, p. 37. 48 Although

in Europe the term Millennium Development Goals is known to only 18% of the population. Only 4% know exactly what they are. Ergo, 82% of all Europeans have no notion of the MDGs. When asked, however, most Europeans do fully support the goals. The European Commission, Europeans and Development Aid, Report, June 2007. 49 http://www.live8live.com. 50 Human Development Report, 1994, New Dimensions in Human Security, http://hdr.undp.org/ en/reports/global/hdr1994/ (Accessed 5 October 2010). 51 It is this – probably most widely supported – model of Human Security that will be elaborated on in this paper. For a clear overview of other definitions, go to wikipedia. http://en.wikipedia.org/wiki/Human_security (Accessed 5 October 2010).

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first four are well-known to most, as they are included verbatim in the Millennium Development Goals. Inclusion of the last three lends human security a considerably more comprehensive scope than human development. It rightly focuses on those areas that have been unjustly neglected by the aid industry, such as personal, communal and political security. We know, after all, that extreme poverty is not limited to un(der) employment, hunger, disease and an exhausted environment. Large-scale research among the most severely deprived (Voices of the Poor project in 200052 ) shows that the extreme poor experience lack of security as an immense problem. Moreover, a large majority state that they feel a lot less safe than during the late eighties of the last century. This lack of security combined with fear results in a narrowing chasm between the poor of the south and those of the wealthy west, who – due to the dynamics of globalization – feel increasingly less secure, as Letschert and Van Dijk rightly state in the first chapter of this book. By attaching this much importance to the security aspect, human security – more powerfully than human development – represents the new cosmopolitan ambition or dream as some would have it53 ; that the Good Life must be within everyone’s reach. “Everyone” includes not only the slum dweller in Kinshasa, but also the single mother in the notoriously criminal Watts District in Los Angeles and the business man in his Kyoto gated community. It is an all-encompassing claim, made more explicit by the authors of the 1994 Human Development Report. Thus, they state as follows: (1) Human security is a universal concern. It is relevant to people everywhere in the world. (2) The seven components are interdependent and interwoven at the global level. (3) Human Security focuses on prevention rather than intervention. (4) Human Security focuses on people rather than nations.54 This broad concept of human security makes for an even more ambitious goal than that of its already ambitious predecessor human development. Human Security is “a child who did not die, a disease that did not spread, an ethnic tension that did not explode, a dissident who was not silenced, a human spirit that was not crushed.”55 The concept is not only more ambitious because it includes a rather high level of international relations, human rights and crime prevention. Its main asset is that it has extended its territory to the global level. Where human development had restricted its focus to the one and a half billion extremely poor in the south, human security addresses all six billion people worldwide. Not only the slum dweller in poverty stricken Zambia may count on the protection of human security, but also the well-to-do citizen of the Netherlands. Contrary to human development, 52 World

Bank, Voices of the Poor: Can Anyone Hear Us? Washington, 2000.

53 ‘A humane world where people can live in security and dignity, free from poverty and despair, is

still a dream for many and should be enjoyed by all.’ Human Security Network, 1999, A Perspective on Human Security. Chairman’s Summary 1st Ministerial Meeting of the Human Security Network, Lysøen, Norway, 20 May. http://www.humansecuritynetwork.org/menu-e.php (Accessed on 12 August 2008). 54 Human Development Report, 1994, New Dimensions in Human Security, pp. 23–24. 55 Ul Haq, Mahbub (1995). Reflections on Human Development, Oxford, p.116.

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human security does not place the major safety threats a priori in the south. The architects of human security state that in a globalized world, each individual is confronted with severe instances of insecurity; those in the west no less than those in the south. Therefore, New Dimensions in Human Security (1994) should not be seen as an isolated publication of its time. In the same decennium, books like Enzensberger’s Aussichten auf den Bürgerkrieg (1993), Kaplan’s The Coming Anarchy (1994) and the American translation of Beck’s Risk Society (1992) were published. The seven categories of global insecurity mentioned in the report, intertwine the car park fears of Enzenberger with Kaplan’s African hell and Beck’s growing risk consciousness. Not only does human security break with the former distinction of the secure north versus the insecure south, it also refuses to rigidly judge in terms of perpetrators and victims. In a globalized society also the rich and powerful may become victims. Similarly the poor may turn into perpetrators. Both the 2001 attacks and the 2004 tsunami violently proved this analysis of the human security concept. Suddenly not only the persecuted and detained leader of the Myanmar opposition or the HIV infected Zambian appeared under threat. Also the successful American business man who unwittingly entered an – Afghan made – flying bomb on 11 September 2001 suddenly became part of the World Risk Society. Not only the poor Thai fisherman on his way to his small vessel, but also the wealthy Swedish tourist lounging in this beach chair after a rich Christmas breakfast, drowned in an immense wall of water in 2004. Where the human development concept finds its roots in global empathy for the poor regions of the world, the human security concept is based on the realization that – in a global society like ours – one’s security depends increasingly on the security of the other.56 He who expects to find security in Oslo or Taipei must also ensure it in Tbilisi or Zimbabwe. Global security is only as strong as its weakest link. Human security intertwines the fate of the Kinshasa slum dweller with that of an Amsterdam millionaire. “Insecurity can no longer be contained – violence has a tendency to cross borders,” writes Mary Kaldor. “Not in the form of attacks by foreign regimes but through terrorism, organized crime or extreme ideologies.”57 “Human Security is not a problem confined only to the developing world,” agree Tadjbakhsh and Chenoy. And the North does not have all the ‘solutions’ for it through interventions, financial assistance or responsibility to protect. The concept easily extends itself to Western societies

56 ‘Security

threats emerge as a direct consequence of dysfunctional regimes in their multiple, though overlapping, sub-systemic dimensions. The reproduction and expansion of mutual vulnerabilities (and insecurity). At both the micro and macro levels, expresses itself through closely related and interconnected thrusts. The same is the case with its opposite – security.’ Nef, Jorge 1999, Human Security and Mutual Vulnerability. The Global Political Economy of Development and Underdevelopment (2nd edition), Canada. Available on the internet: www.idrc.ca/en/ev-9383201-1-DO_TOPIC.html (Accessed 19 August 2008). 57 Kaldor, Mary (2007). Human Security, p. 196.

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If new cosmopolitanism is characterized by two phenomena – the concern for the self and the concern for the other – human security as a concept that at present correlates strongest with new cosmopolitanism. “Human Security concerns transcend the traditional statist confines of national security and tend to focus on elimination or prevention of the causes of threats to human security.” Moreover, where “state security” had been exclusive since the seventeenth century, mainly focusing on the own society, human security is inclusive and universal.59 “Basically, it is the cosmopolitan alternative.”60

3.7 Human Security and Cosmopolitanism Expressly because of this correlation with new cosmopolitanism human security adopts some of its characteristics. In a similar way to the characterization of new cosmopolitanism as a “normative perspective for viewing the potentialities and necessities of our age than as an objective characterization of the age itself”,61 such a view could also hold true for human security. Human security as a magnetic field which organizes our chain of thought on security and poverty in a global world, rather than leading to immediate priority setting or action agendas. In this it clearly differs from the human development concept which led to both the Millennium Development Goals and the Human Development Index. While the intellectual Human Development Concept materialized in the Millennium Development Goals, it is not inconceivable that human security will remain an intellectual concept lacking the potential to create a toolbox for implementing security on a global scale. In that case, Human Security will continue describing an actually occurring development in general terms and providing it with general characteristics. It is precisely that what has been happening since the launch of human security in 1994. Over the past 15 years it has mainly been the subject of political and intellectual discourse. Fierce polemics developed between those researchers and policy makers who denounced the concept for its wide scope, and those who advocated it for precisely that reason, its wide scope and universal qualities. Shahrbanou Tadjbakhsh and Anuradha M. Chenoy’s comprehensive work

58 Tadjbakhsh,

Shahrbanou & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, p. 243. 59 Hayden, Patrick (2005). Cosmopolitan Global Politics. The pursuit of a humane world order, Burlington, p. 72. 60 Johnson, Alan (2007). New Wars and Human Security: An Interview with Mary Kaldor, London. http://www.democratiya.com/review.asp?reviews_id=117 (Accessed 5 October 2010). 61 Ibid.

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on human security is actually an enormous attempt to define the concept and to redesign it into a manageable model for research and policymaking. To that effect it makes use of a large number of charts, diagrams and graphs.62 Thus, Tadjbakhsh and Chenoy cite no less than 21 academic definitions of human security. The various ways in which national governments address human security is ranging from a narrow minimalist variety aimed at military protection to a maximum variety aimed at creating dignity. One critic who continually surfaces in the polemics with only one article is Roland Paris. He jogs the debate in autumn 2001 by asking (himself) whether human security is a paradigm shift or merely hot air. He states it could be a paradigm shift because it has actually brought about some changes. Signs of a possible paradigm shift can – according to Paris and others – be found in the Mine Ban Treaty of 1997 and the lobby that would eventually lead to the International Criminal Court in 2002. In the end Paris chooses the hot air qualification because the concept of human security remains elusive where it comes to clearly defining it. “The term appears to be slippery by design,” he writes and he believes there are forces at work. Paris states that the human security concept is to a large extent embraced by a conglomerate of so called “middle power states,” aid organizations and NGOs that would soon crumble if the concept were to be clearly defined. In 2005 Shahrbanou Tadjbakhsh summarizes the then current debate in “seven challenging questions.”63 Should these seven questions remain unanswered, the concept enters the danger zone and may not survive. Tadjbakhsh, too, believes that the major challenge is the matter of defining the concept. “Without a consensus on the definition of human security, it will be difficult to implement and decide on a common human security program. Today, there is an agreement that human security should be taken from a people-centered more than a state-centered approach, but as mentioned above, the definition or scope of human security is still vague.” She also raises the question: who is ultimately responsible for the implementation of human security? And, which priorities it should set; which threats and insecurities deserve more attention than others? “Once again this also raises the issue of the scope of security.” The answers to such questions will most likely not be found without a proper, i.e. clear definition of human security.

3.8 Differenzierungsverlust This lack of a clear definition of human security and, therefore, the lack of a carefully drafted list of priorities and an action agenda, has obvious implications. Among

62 Tadjbakhsh,

Shahrbanou & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York. 63 Tadjbakhsh, Shahrbanou (2005). Human Security: The Seven Challenges of Operationalizing the Concept. ‘Human Security: 60 min to Convince’, UNESCO, 13, 14-September-2005, September Paris, France. http://www.peacecenter.sciences-po.fr (Accessed 9 January 2009).

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other things, it will lead to views on insecurity of individuals worldwide, without taking into consideration the difference in level of insecurity of e.g. a random entrepreneur in a wealthy Canadian suburb and an equally random entrepreneur in a Brazilian favela severely ravaged by gang wars. Similarly, it may lead to views in which obesity in Australia may appear to be an equally serious form of insecurity as hunger in Ethiopia. A concrete example of this “indifference” towards insecurity levels is found in the very report that formed the basis of the entire concept: the Human Development Report, 1994, New Directions in Human Security.64 Although the authors clearly intend to stress the extreme conditions under which many people have to live, it barely differentiates between the most diverse forms of insecurity. To illustrate this: in one and the same paragraph the authors state “In both the United States and the European Union nearly 15% of the people live below the poverty line (. . .) But the most acute problems are in the developing countries where more than a third of the people live below poverty line.”65 Of course, this statement holds true, but it entirely ignores the fact that the poverty of an unemployed teacher in Denmark can hardly be compared to that of a pavement dweller in Bangladesh. A second example taken from the Human Development Report, 1994 is lack of security for women. Among the worst personal threats are those to women. In no society are women secure or treated equally to men. Personal insecurity shadows them from cradle to grave. In the household, they are the last to eat. At school, they are the last to be educated. At work, they are the last to be hired and the first to be fired. And from childhood through adulthood, they are abused because of their gender.66

Here, again, there is no differentiation between e.g. countries like Ukraine or Pakistan where women are notoriously in danger of being (trafficked and) forced to work as prostitutes, or in danger of becoming victims of honour murders, and countries like Norway or Canada where the differences between men and women are practically negligible. The same problem is found in a second basic document: Human Security Now. Protecting and empowering people67 of 2003, a report by the Commission on Human Security which was initiated by Kofi Annan. This report – of which the authors’ commitment to the people who are absolute insecure is not questioned in any way – hardly differentiates between relative and absolute insecurity. Thus, in one and the same paragraph it unites malnutrition in Africa with unemployment in the west. “In Sub-Saharan Africa, death by starvation or malnutrition is at the horizon of everyday life, a threat that erodes the social fabric. In developed countries,

64 Human

Development Report, 1994, New Dimensions in Human Security. http://hdr.undp.org/ en/reports/global/hdr1994/ (Accessed 5 October 2010). 65 Ibid., p. 26. 66 Ibid., p. 31. 67 Commission on Human Security, Human Security Now. Protecting and Empowering People, New York, 2003.

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continuous unemployment means not only loss of income but also a sense of total failure and exclusion from society.”68 Nor does Human Security Now differentiate between countries where HIV/AIDS has become a chronic but controllable disease with hardly any impact on health statistics, and those countries where the disease leaves a path of destruction causing death and immense misery. “The HIV/AIDS epidemic alone has made it clear that there is no place in the world from which a country is disconnected. Increased international cooperation will be required for effective monitoring, control and eradication of infectious diseases, to prevent further outbreaks and decrease transmission both within and between countries.”69 Strictly seen, all these observations are correct – AIDS knows no borders, hunger and unemployment lead to social isolation, sexual violence occurs in every nation – but they do suffer from Differenzierungsverlust. They suffer from the inability to see the differences beyond the similarities, usually the difference between life and death. Similarities and differences can only be revealed by means of explicit normative criteria. Only those criteria can decide at what moment an individual’s insecurity becomes destructive enough to be unacceptable. Only then will it be possible to define extreme violence in the west, in Europe and the United States of America. Only then will it be possible to explain why members of a Hungarian Roma clan need more protection than a noble family in Ghana. Or why the poverty of the American unemployed and that of Pakistani workers in Dubai deserve equal attention. This conclusion is also reached by Sharbanou Tadjbakhsh and Anuradha M. Chenoy at the end of their significant book: “The most urgent research agenda, in our opinion, is the study of Human Security indicators and by extension the identification of a threshold of insecurity below which life is unbearable to human beings and should not be tolerated by those who can do something about it.”70

3.9 The Importance of an Index Would it be possible to view global insecurity in the same way we view global poverty? Would it be possible to think in terms of absolute and relative insecurity, following the example of absolute and relative poverty? Those who speak about poverty, about human underdevelopment, do so based on this very difference. Terms like absolute and relative poverty are not only clearly defined by the World Bank. They are also firmly grounded in our social consciousness. For instance, by the UNDP campaign introducing the first Millennium Development Goal: to “eradicate extreme poverty and hunger”71 and by public initiatives through social movements,

68 Ibid.,

p. 74. p. 98. 70 Tadjbakhsh, Shahrbanou & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, p. 241. 71 http://www.undp.org/mdg/goal1.shtml (Accessed 5 October 2010). 69 Ibid.,

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globally managed by the Global Call to Action Against Poverty.72 Moreover, the status quo of Human Development is reported in the Human Development Index and conceptualized in the Millennium Development Goals. Absolute poverty is a fact of life for 1.4 billion people globally. They lack almost every conceivable commodity: clean drinking water, health care, education, a blanket for the night and a roof over their heads. The only certainty they have, is the certainty of a dead-end life and an early death. Their poverty is absolute, because there is no way anyone could be poorer than they are. The absolute poor find themselves at the very bottom of human existence. Or: their human dignity is in the balance. Their poverty is inacceptable to all human beings. The standard to measure absolute or extreme poverty as applied by the World Bank is a purchasing power of less than $1.25 per day.73 This does not even buy enough food to provide minimum nourishment for the body. It means that 80% of the extremely poor go hungry every single day. Every year eight million people die simply because they cannot afford to live. The 1.4 billion extremely poor concentrated on the southern half of the globe, are perishing. In contrast, the top half of the income pyramid is represented by 3.3 billion people who do have access to proper food. Their children go to primary and secondary schools. They can count on health care and three meals a day. They have electricity, running water and heating; they use public transport or drive their own cars. Of these 3.3 billion approximately 800 million may count themselves among the absolute rich. Here too, poverty occurs; although a different kind of poverty. This form of poverty is not only less extreme, it is “relative.” Relative in the sense of “less,” but also in the sense of “compared to the average income” of the people of the rich country in question. According to the standards of the OECD – the organization of the thirty richest countries – a person is relatively poor when he has less than 50% of the average income in his country. Based on this standard, the total number of poor in the European Union fluctuates around 10%.74 In the United States – although by a different method – the official number of poor is 13%.75 Nevertheless, the average

72 http://www.whiteband.org. 73 The absolute poverty standard of $1.25 per day was set in August 2008, following the $1 per day

standard of 1985. The sum represents a person’s purchasing power. It allows us to make purchasing power comparisons between countries, the so-called purchasing power parity. Surviving on $1.25 per day means that you have a daily consumption of the equivalent you can buy for this sum in the country of the dollar, the United States. The produce generated by the people in question e.g. crops of rice or corn is included in this $1.25. It means that the actual income of people living on $1.25 (or less) is significantly less. 74 For the poverty definition of the OECD: Förster, Michael & Marco Mira d’Ercole (2005). ‘Tackling Poverty’, OECD Observer, March. http://www.oecdobserver.org/news/fullstory.php/ aid/1586/Tackling_poverty.html (Accessed on 16 September 2008). 75 For the poverty definition applied by the United States: U.S. Department of Health & Human Services. The 2007 HSS Poverty Guidelines. http://aspe.hhs.gov/poverty (Accessed on 16 September 2008).

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poor American family has a car, their own home, air conditioning, a fridge, central heating, a washing machine and a dryer, a microwave, two cable or satellite televisions, a video player and a dvd player.76 Can and should we make a similar distinction with respect to the insecurity of individual world citizens? That is, with respect to their human insecurity? Is relative insecurity in that case insecurity in a society which is highly capable of curbing these insecurities? And, following this line of thought is absolute insecurity that of communities entirely lacking control over potential calamities? Where besides poverty, also lurking criminals, corrupt governments or sudden natural disasters claim their victims? Where – in short – human dignity hangs in the balance? There is currently no comparative standard to define absolute and relative insecurity. That a distinction exists, as is the case with poverty, is a valid observation. Absolute insecurity reigns unmistakably in countries at war. Or in areas where the level of insecurity is such that, although not at war in the strict sense, a situation exists as if this were the case. A world devoid of any sense of security or protection, in which people are subjected to danger all the time, and in which each disaster is a matter of life and death. If we choose to make this distinction between absolute and relative, we need an explicit standard, a criterion similar to the $1.25 per day standard applied by the World Bank, or the rather more qualitative definition of poverty used by the Human Development Index. In our search for an instrument to interpret absolute and relative insecurity, a Human Security Index would definitely be of help. An HSI, modeled on the Human Development Index, the HDI. A similar index for human security would not only bring conceptual clarity, it could also produce a list of priorities as a basis for policy making. Although we have been using the term human security since 1948,77 60 years later we still have to do without a Human Security Index to register and report on the security of people around the world. The strong appeal of Ulrich Beck and Natan Sznaider on social scientists to transform their nationalist agendas into cosmopolitan agendas,78 is increasingly finding fertile ground. However, for human security this has had little result. It must be said that some initiatives to arrive at a comprehensive index were taken, but each time these attempts either fell through or petered out.79

76 ‘The

mountain man and the surgeon. Reflections on relative poverty in North America and Africa’, The Economist, 24 December 2005. 77 MacFarlane, S. Neil & Yuen Foong Khong (2006). Human Security and the UN. A Critical History, Bloomington. 78 Beck, Ulrich, & Natan Sznaider (2006). ‘Unpacking Cosmopolitanism for the Social Sciences: A research agenda’, The British Journal of Sociology, 57, 1. 79 Suggestions for a Human Security Index based on the broad concept of 1994 were made by (among others) the following academics: Bajpai, Kanti (2001). Human Security: Concept and Measurement. http://www.nd.edu/~krocinst/ocpapers/op_19_1.PDF (Accessed 16 September 2008). King, Gary and Christopher Murray (2001). ‘Rethinking HS’, Political Science Quarterly, 2001–2002 116(4) http://gking.harvard.edu/files/hs.pdf (Accessed 19 September 2008). Booysen,

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The fact that human security still has no index has its reasons. First of all, a large number of methodological criteria are impeding the development of an HSI. Data of many – mainly insecure – countries are not available. If by chance, they do exist, the information in these datasets is hard to compare. Moreover, it is notoriously complex to define the criteria necessary for comparison. For instance, how do you compare obesity in the US to aids in Zimbabwe, or “mindless violence” in the Netherlands to piracy in Somalia? Thus, it remains unclear what an HSI should reveal in a serious attempt to answer questions like these. Many variables will have to be “ignored,” which immediately raises the question which elements the HSI is unintentionally covering up. “Even if it were possible to create a composite human security index, it is not clear that doing so would be desirable,” Andrew Mack states in his Human Security Report 2005. “While composite indices have distinct advantages, simplicity also has a downside. Composite indices can conceal more information than they convey.”80 There are also numerous political objections. A global Human Security Index will by definition rank some countries at the top and some at the bottom of the index. A country at the bottom is apparently not capable of protecting its people, assuming the government itself is not an immediate threat to its subjects. Due to increasing international consensus about the sovereignty of a state being directly related to the ability to protect its people, a low HSI ranking may constitute an invitation to foreign powers to step in and take over the government. This happened in Kosovo, East Timor, Haiti, Sierra Leone, Afghanistan and Iraq. On the other hand, a low ranking on the index might be desirable, because it opens ways to apply for aid worldwide. Lastly, an HSI can have adverse diplomatic consequences when designed or adopted by an organization like the UN. “Any ranking exercise that reflects badly on governments will generate both resistance and resentment – the reason why UN agencies have long been discouraged from creating a Human Rights Index.”81 These are important objections, but no matter how relevant they are, at the same time they do little to reassure those who are seriously concerned about the insecurity of billions of people. In the end, the absolute insecurity of real people worldwide will have to be researched, measured and indexed. And again, in the end we will have to combat this absolute insecurity as fiercely as we are combating extreme poverty today. Ultimately, human security will have to be realized by defining one or more concrete goals similar to, or perhaps as part of, the Millennium Development Goals. The remaining question is: how?

Frikkie (2002). ‘The Extent of and Explanations for International Disparities in Human Security’, Journal of Human Development, 3, 2, 273–300. A well-documented outline of the debate on Human Security and a Human Security Index is given by Tadjbakhsh, Shahrbanou, & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, pp. 241–242. 80 Human Security Report. Creating a human security index? pp. 90–91. 81 Mack, Andrew (2002). ‘Report on the Feasibility of Creating an Annual Human Security Report’. Quoted by Tadjbakhsh, Shahrbanou, & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, p. 241.

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3.10 Back to New Cosmopolitanism For a possible answer in general terms we return to the intellectual source of human security: new cosmopolitanism. That new mindset for a global era which aims to connect universal human dignity with mild patriotism, and which connects the concern for the self with the concern for the other. A philosophy that includes both global fear and global empathy in its considerations. No matter how diversely this new cosmopolitanism will develop in future, there is one common starting point: it starts with the dignity of all people and the human values that protect this dignity, and then it proceeds to fuse the global risk society with the global care society. Those who see new cosmopolitanism as a directional world view, e.g. because they support Robert Fine’s proposition (we do not live in a cosmopolitan age but we do live in an age of cosmopolitanism), will soon wonder why risk and care are still thought of as separate entities. Why do human development and human security still occur separately rather than walking side by side in unity or merging into one comprehensive concept? Why do we need two paradigms, two research agendas, two publication channels, two lobbies towards politicians? Why this competition of academic research, public attention, political influence and – in the end – the furnishing of funds? Why are there no joint research agenda, one public and political lobby and central planning in allocation of funds? Or is this a premature question? Are there by chance initiatives to arrange an “engagement”? Yes, there are.

3.10.1 Development and Security Are Coming Together In 1995 it was possible for Mahbub ul Haq, architect of the Human Development Index, to state: The human development paradigm is the most holistic development model that exists today. It embraces every development issue, including economic growth, social investment, people’s empowerment, provision of basic needs and social safety nets, political and cultural freedoms and all other aspects of people’s lives. It is neither narrowly technocratic nor overly philosophical. It is a practical reflection of life itself.82

Ul Haq wrote down his words in 1994, in the rather optimistic era after the fall of the Berlin Wall. Although Hans Magnus Enzensberger and Robert Kaplan’s prophecies of doom were already lining the shelves of the bookstores and the genocidaires of Rwanda started killing nearly a million people, we were still ignorant of the mass murders of Srebrenica, the bloodshed in Congo and Darfur, the attacks on New York, Madrid and London and the most recent Iraq and Afghan wars. All these conflicts clearly proved that the human development concept was showing an obvious security void. It simply underexposed crime, terrorism, war, political 82 Ul Haq, Mahbub (1995). ‘The Human Development Paradigm’, in Reflections on Human Development, Oxford University Press, p. 23.

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violence and instability. Public opinion seems to support this feeling. Public opinion polling using the Eurobarometer shows that, when Europeans are asked to mention the three most urgent measures national governments should implement to reach the Millennium Goals, 20–49% of all Europeans mention measures already covered by the MDGs and 65% supports the measure “Reduce the possibility of armed conflict and war.”83 Fifteen years after 1995 this security void in human development has reached the entire scope of the discourse. In current discussions on the future of the Millennium Development Goals (to be realized in 2015) human security aspects are a given fact. This focus on security has not exclusively been initiated by the impacting conflicts of the past 15 years. For instance, the Voices of the Poor project of the World Bank showed without a shadow of a doubt that the poor are generally more worried about their current insecurity than about their structural poverty. Also, more data became available on the intrinsic link between extreme poverty and violent conflict. The poorer the household is at the start of the conflict, the higher is the probability of the household participating and supporting an armed group. The higher the risk of violence, the higher is the probability of the household participating and supporting armed groups. The interaction between these two variables varies with the conflict itself and is defined by the direct and indirect effects of conflict-induced violence on the economic behavior and decisions of households in combat areas.84

In other words, human security was already merging with human development. And now human development in its turn is fusing with human security. Moreover, human security can no longer be ignored in the debate on the post 2015 format of the Millennium Development Goals. “If the eradication of absolute poverty remains the centerpiece, many of the present areas would remain relevant, but issues such as empowerment, rights, security/fragile situations, vulnerability, human security and access to infrastructure services, would need to be debated,”85 is the opinion of Richard Manning, the influential former chairman of the OECD’s Development Assistance Committee (DAC). In the same way the human security concept drafted by Mahbub ul Haq included four human development aspects – viz. Economic security, Food security, Health security and Environmental security – potential post 2015 Millennium Development Goals will no doubt include aspects that are so far mainly characteristic of human security – viz. Personal security, Community security and Political security. Human security strategists acknowledged as early as 1994 that development is a prerequisite for a safe society; human development strategists now realize that development will never exist without a sufficient degree of security.86 83 The

European Commission 2005, Attitudes towards Development Aid 2004, February, p. 22.

84 Justino, Patricia (2009). ‘Poverty and Violent Conflict: A Micro-Level Perspective on the Causes

and Duration of Warfare’, Journal of Peace Research, 46, 3, 315–333. Richard (2009). ‘Using Indicators to Encourage Development? Lessons from the Millennium Development Goals’, DIIS Report 2009:01, February, p. 67. 86 Ball, Nicole (2001). Report of a conference organized by the Programme for Strategic and International Studies, Graduate Institute of International Studies, Geneva, 8–9 March. 85 Manning,

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3.10.2 The North-South Divide Is Challenged Not only are development and security concepts merging gradually, we also see the traditional relations between north and south being challenged. The current Millennium Development Goals still mention a massive chasm. The north is rich, secure and powerful; the south is poor, insecure and weak. It is therefore the duty of the north – the white man’s burden87 – to support the south in its development. This view is eroding. In many poor countries excessively rich enclaves develop; at the same time there is increasing poverty in specific groups in the rich countries. The Bentleys and Rolls Royce’s in the Indian metropolis of Mumbai make a glaring contrast to the extreme poverty of the Dharavi slum dwellers, but also to the poverty of the clients of Dutch food banks. The working poor in the US trailer parks are not only far removed from those living in New York’s residential areas around Central Park, but also from the Nigerian oil millionaires in Lagos. Not only the chasm between the poor south and the wealthy north is challenged; the gap between the insecure south and the secure north, too, seems to be less clearly defined than had been assumed. September 11 and the attacks in London and Madrid once and for all ended this dichotomy. Twenty Middle Eastern terrorists were capable of destroying the commercial heart of the world (the WTC), to attack their military nerves centre the Pentagon and – in the end – to narrowly miss the political HQ of the world’s most powerful nation, the White House. On 9/11 the north was proved no less vulnerable or insecure than the south. A similar situation applies to the impotence of the south and the power of the north. Eight years after the invasion of Afghanistan, launched by superpower US and a coalition of the willing in order to arrest Al Qaeda leader Osama bin Laden and to curb the powers of the Taliban, we have to conclude that neither goal has been realized. Sixty-five years ago the United States needed only 2 years to free both Europe and Asia of fascism; in today’s Afghanistan a combined action of the armies of the north – in progress for 8 years at this point in time – has so far not resulted in subjecting the irregular forces of the Taliban. In the past decennium relations between the west and the rest have changed to such an extent that Dominique Moisi describes the United States and Europe as the “cultures of fear” in his Geopolitics of Emotion. It is excessive fear replacing justified fear. A kind of fear that entirely focuses on lost superiority and the arrival of the Other, the outsider who has come to claim what is rightfully his. The dreams of those who were scorned are the nightmares of those who scorned but can no longer do so. In Asia, however – until the late eighties part of the so-called third world – a culture of hope reigns. The same holds true for Africa where, according to Moisi, hope is growing, albeit at the same rate as despair.88

87 Easterly, William (2006). The White Man’s Burden. Why the West’s Efforts to Aid the Rest Have Done So Much Ill and So Little Good, Penguin. 88 Moisi, Dominique (2009). The Geopolitics of Emotion, New York, Doubleday Publishing.

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This idea of reconsidering the strict division of north and south has not exclusively been set in motion by the turbulent developments of the past 15 years. Within the scope of the human development discourse the division is also criticized for its internal criteria. In his widely discussed article “From Universal Values to Millennium Development Goals: Lost in Translation”89 Ashwani Saith explains that the human development concept originally possessed a universal scope. A scope that was narrowed down to represent the Third World, during the process of defining the Millennium Development Goals. According to Saith the starting point has been and will be the universal human values. These were subsequently reduced to human development dimensions and ultimately translated into well-defined Millennium Development Goals and equally well-defined criteria of the Human Development Index. In this process of translation and transformation America and Europe were lost, implying that on these continents human values were already in force. In the MDG concept the Third World and more specifically Africa, is presented as an enclave of poverty: Even though it professes to be propelled by shared universal values, the entire MDG scaffolding and accompanying text is insufficiently global in its approach. It tends to ghettoize the problem of development and locates it firmly in the third world – as if development is fundamentally and exclusively an issue of absolute levels of living. What happened to poverty and deprivation in the advanced economies? Are they to be silenced?90

Saith’s recommendation is obvious: we have to leave the assumption that we decide their agenda. The human development concept – like human security – has to reconnect with the universal human values from which it once originated; it has to reconnect with the basic ideas of cosmopolitanism. This view is shared by the United Nations. In a 2008 report on the MDGs the Secretary-General is quite explicit on this subject. “The MDG’s are universal: they are intended to embrace not only all countries but also all people within each country. (. . .) They encompass universally accepted human values and rights, such as freedom from hunger, the right to basic education, the right to health and a responsibility to future generations.”91 And in a recent preview on the post 2015 format of the Millennium Development Goals, former OECD/DAC chairman Richard Manning, too, argues in favour of a new, cosmopolitan one-world approach: There is a prima facie case for a further set of indicators designed to encourage the effective tackling of the problem of absolute poverty in all its aspects, and to encourage international support for it, but this needs to be tested against a more ‘one-world’ approach that would be aimed more at encouraging policy-makers in every country to give greater weight to tackling systemic global issues, of which absolute poverty would be just one.92 89 Saith,

Ashwani (2006). ‘From Universal Values to Millennium Development Goals: Lost in Translation’, Development and Change, 37, 5, 1167–1199. 90 Ibid., p. 1184. 91 The Millennium Development Goals Report 2008, pp. 4–5. 92 Manning, Richard (2009). ‘Using Indicators to Encourage Development? Lessons from the Millennium Development Goals’, DIIS Report 2009:01, February, p. 65.

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With this new direction of human development we come across the very real danger of Differenzierungsverlust, the same phenomenon that we found in human security. How can we prevent that – working with a global aid agenda – large sums are spent on new laptops for children in Germany’s deprived areas when at the same time cutting back on school food for hungry children in Sierra Leone? Within the new cosmopolitan concept how do we differentiate between the sufferings of an Aspen skiing casualty and that of a Darfur rape victim? How to design new cosmopolitanism in such a way that it does not pass by those who suffer most from poverty and insecurity?

3.11 New Challenges 1. Because human development and human security are more and more interrelated they are also increasingly merging. “Human development and human security thus appear as two parallel processes that go hand in hand. Progress in one enhances the chances of progress in the other, when failure in one, enhances the chances of failure in the other. Human security and human development are therefore overall sister concepts with mutually beneficial cross-contributions.”93 It raises the legitimate question if both concepts still have a separate raison d’être. Would it not be preferable to find a concept that unites the two? A concept that fully integrates development and security? A concept with a shared research agenda, one communal public and political lobby and central planning in allocation of funds? If so, the question remains which term we should use for the merged concepts. 2. Due to far-reaching changes in the geo-political agenda and because of critical reflection on the human security and human development concepts, the once obvious chasm between the west and the south is questioned. In the south inequality is growing; we can no longer label countries as being “just” poor or “just” insecure. Moreover, the west appeared to be much more vulnerable than was assumed for a long time. Instead of thinking and acting in terms of the rich, secure and powerful west versus the poor, insecure and powerless south, the time seems ripe for a one-world approach; An approach that also includes poverty, insecurity and lack of power in the west. This one-world approach will once more unveil the original cosmopolitan ambition behind human development and human security. It is relevant to ask under which umbrella term we can realize this one-world approach. 3. For many good reasons the Human Development Index is limited to three datasets, Life expectancy, Education and Purchasing power. Security, no matter how relevant, is not measured by the HDI. For many good reasons, too, it

93 Tadjbakhsh,

Shahrbanou & Anuradha M. Chenoy (2007). Human Security. Concepts and Implications, New York, p. 116.

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is currently neither possible nor desirable to design an explicit Human Security Index, an index representing the global security of people. An interesting attempt to say at least something about the status of human security is the 2005 Human Security Report and the two consecutive publications, a Human Security Brief and a Human Security Atlas, both in 2009.94 However, the approach in these publications is a narrow approach of human security; it does not include human development. This opens the road to research the feasibility of a new index; an index that takes up the challenge to present a new paradigm, beyond the existing concepts of development and security; a paradigm that reveals the state of underdevelopment and insecurity of people worldwide. Ad. 1 A term that may guide us in our quest for answers to these questions is human dignity.95 This term not only links Human Security to new cosmopolitanism. More importantly, it is this term that makes the human being human, says Immanuel Kant; a term implying that a human being cannot be merely a means to an end, but only the end itself. Dignity represents no value, no “price” that we can set on someone; it is an intrinsic human characteristic, an absolute inner value in each human being. A characteristic that is known to every individual because it is part of “the moral law within me.” It is part of each individual’s basic notion of right and wrong. Moreover, a notion that encompasses a basic idea of the current state of our society and the ideal state of our society.96 And, dignity is an essentially contested concept. Meaning that you only use the concept in a proper way if you keep it open, if you continue to discuss and review it. Dignity is an essentially contested concept because on the one hand there will be widespread consensus on its role as basic notion of both human development and human security, on the other hand it still leaves plenty of room to add (extra) content to its meaning; a process that will probably continue indefinitely. At this moment, however, 94 See

the Human Security Research Project, http://www.hsrgroup.org. this chapter I stick to the definition of dignity given by Immanuel Kant in Grundlegung zur Metaphysik der Sitten from 1785. Human Dignity as a concept was fully elaborated for the first time by Pico Della Mirandola in his Oration of the Dignity of Man in 1486. One of the most influencial defenders of the concept of dignity in our times is Peter Singer in The Life You Can Save. Acting Now to End World Poverty published in 2009. From Mirandola through Kant to Singer, the concept changed dramatically. Peasants, slaves, children and women became included and these days Singer even defends the dignity of animals. So it is not easy to fix the term dignity to one definition. The same problem appears when we analyse the use of the term dignity in declarations, conventions or constitutions. ‘Dignity’ appears in Article 1 of the Universal Declaration of Human Rights, as it appeared in the constitution of the communist German Democratic Republic. However: one country removed ‘dignity’ from its constitution completely: Nazi-Germany in 1933. 96 But in the end we will have to leave Kant’s definition because the current use of Dignity implies certain rights. Kant, however, states that dignity mainly implies the (moral) duty to safeguard one’s own dignity and that of the other. According to Kant we should perfect our moral selves by acting on our dignity. Sensen, Oliver (2004). How Human Dignity Grounds Human Rights: Two Paradigms. Paper presented at the annual meeting of The Midwest Political Science Association, Chicago, Illinois, 15 April 2004. 95 In

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the term dignity has only marginally been adorned with human development or human security terms. Ad. 2 No matter how contested, the term human dignity is more than anything else capable of indicating where poverty and insecurity cross the line from relative to absolute. To illustrate this: a broken nose after a skiing accident in Aspen probably does not injure one’s dignity, but a broken nose suffered during a torture session in a Saudi prison certainly does. The term may also illustrate why the immigrant status in Berlusconi’s Italy will be felt as a more severe corrosion of one’s dignity than an immigrant status in the former Bush’s administration of the United States of America. Human dignity allows us to consider poverty and insecurity inacceptable – irrespective of where in the world they occur – without ending up in a world of relativism in which all distinction disappears. In the end human dignity should enable us to define the moment at which outside interference is morally justified. Ad. 3 Whereas development and security are in actual fact objectifying criteria that can be used to clarify an entire process from the most basic to the most elaborate form of development and security, the rather normative concept of human dignity enables us to define a threshold; a threshold between acceptable and unacceptable. The concept of human dignity could thus articulate the moment at which poverty and insecurity cause the loss of dignity of those suffering them. Human dignity is not merely a normative criterion; it also leaves room for subjective criteria. The scope of a possible Human Security Index is not only broad enough to include data like life expectancy, education, purchasing power and security. It leaves room for criteria like equality, pride, confidence and wellbeing.

3.12 In Conclusion Meanwhile new cosmopolitanism continues to develop, albeit in terms of human development and human security, for now. In January 2009, when I start writing this paper, all over the world people are protesting the violent Israeli invasion in Gaza. Even though Israeli authorities do not allow journalists into Gaza, Al Jazeera television coverage motivates people globally to demonstrate: from Sydney and Tokyo via Islamabad and Beirut, Salzburg and Oslo, to San José and New Orleans. While demonstrations fly across the screen on YouTube, my mailbox announces Robert B. Zoellick’s New Year’s speech; Zoellick is president of the World Bank Group. He states: “There needs to be a stronger link among security, governance and development in countries like Afghanistan, Haiti and Liberia if the one billion people living today in fragile states are ever to escape extreme poverty.”97 By the time I finish this chapter, the newspapers report that a “number of Chinese intellectuals” in an open 97 ‘Security, Governance and Development Need Stronger Link, Zoellick says’, Press release World

Bank Group, 8 January 2009. http://web.worldbank.org.

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letter call on Chinese authorities to break off relations with the “satanic regime” of North Korea and combine forces with the United States to “liberate” the 22 million North Koreans. Irrespective of the ultimate results of the Gaza-related demonstrations, the speech by Zoellick or the appeal of Chinese intellectuals, they represent the power of both human development and human security. Both are cosmopolitan grand narratives which entirely support the concept of kosmou politês. The fact that the human development concept did materialize through the Millennium Development Goals and human security has not (yet) found its practical realization, does not mean that the concept is lacking performative power. Human development and human security; both are concepts that would not have emerged without the rise of new cosmopolitanism in the eighties of the last century. In the end the cosmopolitan condition is not about human development or human security; it is not even about the umbrella term of human dignity. In the end it is all about human responsibility.

Part II

Victims of Transnational Crimes

Chapter 4

Trafficking for Sexual Purposes as a Globalized Shadow Economy: Human Security as the Tool to Facilitate a Human Rights Based Approach Conny Rijken and Renée Römkens

4.1 Introduction Mainstream analyses of globalization often reflect an optimism, as if the increased global financial and trade dynamics are an indicator of progress. This optimism has certainly received a major blow as a result of the unprecedented financial crisis that has affected the global economy after its initial start in the United States in the autumn of 2008. Although this crisis cuts across social classes to a certain extent, with some people even going from riches to rags, it obviously affects the disadvantaged social groups most. The financial crisis in a way underlined what many critics of the global markets had already been pointing out for many years: globalization does not exactly have a beneficial impact on many historically disadvantaged groups in terms of race, class and gender.1 On the one hand, globalization has stimulated the creation of job opportunities that were non-existent before. On the other hand, the reconfiguration of economic spaces, in combination with technological developments in information and communication has fostered a dynamic that has increased distance between the valorized high-end and devalorized low-end jobs.2 It has also led to an increased supply of low-paid jobs in the agricultural and offshore industries and to an increased demand for low-paid service jobs. Sex work can be considered one of those service jobs in the informal labor market that faces an increasing demand. In this chapter the effects of globalization on trafficking in human beings (THB) for the purpose of sexual exploitation will be explored from the perspective of those C. Rijken (B) Associate Professor, Senior Researcher INTERVICT, Department of European and International Public Law, International Victimology Institute/Tilburg University Law School, PO Box 90153, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 Arya,

S. & Roy, A. (2006). ‘When Poor Women Migrate’, in: Arya, S. & Roy, A. (eds.). Poverty, Gender and Migration, New Delhi, Sage Publications. Sassen, S. (1998). Globalization and its Discontents. Essays on the New Mobility of People and Money, New York, NY, W.W. Norton & Company. 2 Sassen, S. (1998). ‘Toward a Feminist Analysis of the Global Economy’, in: Sassen (1998, pp. 81–109). 73 R. Letschert, J. van Dijk (eds.), The New Faces of Victimhood, Studies in Global C Springer Science+Business Media B.V. 2011 Justice 8, DOI 10.1007/978-90-481-9020-1_4,

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who are subjected to forced prostitution or sex work, virtually always women and girls. Trafficking is a criminal act that often constitutes a violation of migration laws. Therefore, the legal response is defined by the aims and interests that inform these two legal frameworks: prosecution of the suspect, protection of national borders and control of transnational migration. The question we raise is what a human rights perspective enhanced by the concept of human security can offer to address trafficking. We will argue that the concept of human security deserves a more prominent place in order to make a human rights based approach to trafficking truly sensitive to identifying the needs of victims in terms of assistance and support. First the relation between globalization and migration and their effects on trafficking in human beings (THB) will be explored. Given that the legal response to THB usually focuses on prosecuting traffickers, and therefore finds its basis in criminal law, we will examine which obligations flow from using a human rights law framework to effectively address THB. We will argue that we need to find a balance between serving criminal legal (prosecutorial) interests and victims’ interests. It will be argued that a more comprehensive approach to trafficking in human beings can be realized only if the needs of those who are trafficked are chosen as the starting point for devising remedies against trafficking in human beings. Finally we will argue that the concept of human security might be helpful, not only to identify these needs in a comprehensive way, but also as a conceptual framework that allows to productively reconcile the tension between prosecutorial interests and victim protection in the field of trafficking.

4.2 Globalization and Trafficking Globalization encompasses the international flow of ideas and knowledge, the sharing of cultures, the closer (economic) integration of the countries of the world through the increased flow of goods and services, capital, and labor.3 Theoretically, globalization may lead to an improvement of living standards throughout the world amongst other things, because it may give poor countries access to overseas markets and may open borders for people to education and work. However, in reality this is often not the case. One fundamental critique is that globalization in fact pushed a particular set of economic values often resulting in increased economic inequality between and within countries. It is generally recognized that not all people profit equally from a globalized world and that it can even have devastating effects on some (groups of) people.4 More specifically: the internationalization of manufacturing industry brought along, inter alia, a feminization of poverty.5 Here we will 3 Stiglitz,

J. (2006). Making Globalization Work, London, Allen Lane. (2006, p. XVI) and Arya & Roy (2006, p. 16). 5 Sassen (1998). ‘Notes on the Incorporation of Third World Women into Wage Labor through Immigration and Offshore Production’, in: Sassen (1998, pp. 82–131). See also: Ehrenreich, B. & Hochschild, A. (eds) (2003). Global Woman: Nannies, Maids and Sex Workers in the New Economy, London, Granta Books. 4 Stiglitz

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address specific aspects of globalization that are particularly relevant in the context of human trafficking.

4.2.1 Globalization and Migration One effect of globalization is that some people have increased possibilities to move to other places and countries to find work. Referring to the uneven impact of globalization in terms of the opportunities or obstacles it creates, Castles has described the relation between globalization and migration on the basis of nine contradictions.6 The first one is the contradiction between inclusion and exclusion: “[s]ome become full members of the new global order while others are marginalized.”7 Most developed countries have adopted restrictions on migration into their countries and, in doing so, literally practice a policy of inclusion and exclusion. Most Western countries (Western EU countries, USA, Canada) created specific migration possibilities exclusively for highly educated and skilled personnel in the ICT sector or in academia. This obviously contributes to a brain drain in the countries of origin. Low-skilled and less educated workers are often excluded, even though there is a substantial demand for these workers. Therefore in the low-skilled segment of the labor market, most notably in domestic or agricultural labor (often temporary, seasonal work) the demand for workers is met by illegal migrants. The liberalization of capital markets has taken place largely from the perspective and to the benefit of the developed countries in the global North.8 The flow of migrants around the world primarily goes from the poorer to the richer regions. Even with investment in developing countries, the flow of multi-national capital does not lead to structural improvement of national economies since most of the benefits flow back to the Western investors. The dominant neo-liberal and capitalist economic dynamics of globalization dictate the direction of this migration flow. The global North expands its economic growth and wealth through cheap labor supply, mainly from the global South, both legally and illegally: legally through off-shoring parts of its industry to low-wage countries, and illegally by employing illegal and/or trafficked migrant workers.9 Globalization has contributed to an increasing inequality between developing and industrialized countries, with a particularly negative impact on many women.10 6 Castles, S. (1998). ‘Globalization and Migration: Some Pressing Contradictions’, International Social Science Journal, 156, 179–186. 7 A closer look at the other contradictions which Castles distinguishes shows that they directly or indirectly touch upon the contradiction between inclusion and exclusion: the contradiction between market and state, growing wealth and impoverishment, the Net and the Self, the global and the local, the economy and the environment, modernity and postmodernity, the citizen as a national and the global citizen, globalization from above and globalization from below. 8 Stiglitz (2006, p. 89). 9 Sassen (1998); De Sousa Santos, B. (ed.) (2007). Toward a New Legal Common Sense; Law, Globalization and Emancipation, London/New York, NY, Verso. 10 Arya and Roy (2006, pp. 20–21).

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People will seek every opportunity to improve their livelihoods as long as the imbalance between labor demand and a surplus in supply is growing in less industrialized and developing countries.11 If there are no (legal) ways to reach job markets to make a decent living, the illegal path is the only alternative. As markets by themselves do not lead to efficiency, governmental regulation is required.12 These governmental interventions, mostly through highly restrictive migration laws, do not necessarily have the intended effect and may even have unintended or contradictory side-effects.13

4.2.2 Migration and THB The push and pull factors of both migration and trafficking reflect a complex constellation of social, economic and political constraints in which individuals decide to look for opportunities “abroad,” hoping to make a better living.14 In a context of many legal and practical constraints to migrate legally and a large supply of aspiring migrants, the latter can easily become targets for individual smugglers of humans, traffickers and (organized) criminal groups.15 The boundaries between voluntary migrations on the one hand, where people are willing to take risks in the process of being smuggled in order to find work, and trafficking on the other hand get blurred easily. We need to distinguish smuggling, as a form of voluntary migration, from trafficking, although the underlying socioeconomic dynamics are both fuelled by poverty.16 Trafficking is primarily about work offers that turn out to be false because the (migrating) individuals are eventually forced to do either other work or work under slave-like conditions. Trafficking can take place in one and the same country but is often committed across borders. Smuggling is not about work but about the offer to arrange transportation to another country that the individual either cannot reach by her/himself and/or cannot enter legally. Individuals who want to migrate to find work in that country are vulnerable to financial exploitation: the smuggler usually charges excessively high prices for transportation, often under abysmal conditions with severe risks to life and health. Once in the country of destiny, smuggled individuals are illegal immigrants searching for work. However, an unknown number of smuggled people end

11 Commission

on Human Security, Human Security Now, New York, NY 2003, p. 44. (2006, p. 29). 13 See for instance World Commission on the Social Dimension of Globalization, A Fair Globalization: Creating Opportunities for All, Geneva, ILO, 2004, p. x. Stiglitz argues that the negative side-effects are not inevitably connected to globalization itself but more to the way globalization is (mis)managed. Stiglitz (2006, p. 24). 14 Arya & Roy (2006, pp. 9–10). 15 Castells, M. (1998). End of Millennium, vol. III, The Information Age, Malden, Blackwell, pp. 168-178. 16 Scarpa, S. (2008). Trafficking in Human Beings, Modern Slavery, Oxford, OUP, pp. 41–82, Bales, K. (2004). Disposable People, New Slavery in the Global Economy, University of California Press. 12 Stiglitz

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up in forced, exploitative work settings in order to pay back the smugglers. In that case, smuggling is considered a form of trafficking. It is the conditions under which individuals are forced to work, sometimes without any payment, and achieved by deception, that distinguishes trafficking from smuggling. From the perspective of protective legal measures, the issue of trafficking concerns the protection of individual persons against violence and abuse, whereas smuggling of persons concerns the protection of the state against illegal migration.17 Here we use the internationally accepted definition of trafficking as defined in the Palermo Protocol of 200018 : The recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.19

Trafficking was initially associated particularly with exploitation for sexual purposes, mostly of women and children. The current gender-neutral and broadened definition of THB reflects that male victims are increasingly targeted as well, usually to work under slavelike conditions in agriculture (often in remote rural areas) or in industries where governance and supervision are easy to circumvent.20 A small minority of men and boys are trafficked for sexual purposes. Keeping that in mind, most of the research and data available on trafficking at this point in time is based on findings regarding female victims of sexual exploitation.21 Reliable data on the number of persons being trafficked are difficult to gather since the majority of all victims inevitably are kept hidden, virtually imprisoned by their traffickers. In the US Trafficking in Persons report, it is estimated that between 600,000 and 800,000 persons a year are trafficked across international borders worldwide, the majority of which are women (children take up most of the rest, and male victims are the smallest part). Most of them are trafficked for sexual

17 Ditmore,

M. & Wijers, M. (2003). ‘The Negotiations of the UN Protocol on Trafficking in Persons’, Nemesis, 4, pp. 79–88. 18 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nation Convention Against Transnational Organised Crime, signed in Palermo, December 2000. 19 It is beyond the scope of this chapter to fully address the ongoing debate on the definition of THB. See for instance, Doezema, J. (2002). Who Gets to Choose? Coercion, Consent and the UN Palermo Protocol, Gender and Development, p. 1. Jordan, A. (2002). Annotated Guide to the Palermo Protocol, New York, NY, International Human Rights Law Group. 20 For a more elaborate description on this, see Jonge van Ellemeet, de H. & Smit, M. (2006).‘ Trafficking for Exploitation Outside the Sex Industry’, in Anker, van den Ch. & Doomernik, J. (eds.), Trafficking and Women’s Rights, Hampshire, Palgrave MacMillan. 21 See Dutch National Rapporteur on THB (2004 and 2005). Trafficking in Human Beings, Third and Fourth Reports, The Hague. These conclusions may apply mutatis mutandis to victims of (other forms of) economic exploitation. Smartt, U. (2003). Human Trafficking: Simply a European Problem? European Journal of Crime, Criminal Law and Criminal Justice, 2, pp. 167–169.

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exploitation or for exploitation as a domestic worker.22 THB takes place on national, regional, and international levels. Virtually every state across the globe is affected by the crime of trafficking, be it as a country of origin, transport, or destination.

4.2.3 Feminization of Migration and Gendered Vulnerability to Victimization by Trafficking Economic and political effects of globalization negatively impact the position of women in general and their vulnerability for trafficking practices more specifically. Although empirical research on patterns of transnational migration is still limited, there is a clear tendency that the number of women who migrate is on the increase. This applies particularly to female breadwinners who carry the sole responsibility to care for their children and sometimes also for elderly members of the family, with whom many leave their children in order to be able to provide for the extended family.23 The ultimate goal of migration is essentially the same for both migrating men and women. Besides the reasons that motivate virtually every migrant – the desire to provide a basic income and better life for themselves and/or their family – for a substantial number of female migrants there is also a gender-specific push factor at work: the motive to leave an abusive and violent family situation. In this regard, the former UN Special Rapporteur on violence against women Coomaraswamy stated that “to counter trafficking by preventing women’s migration is to lock them into domestic systems of oppression.”24 One of the effects of globalization is that with the increasing poverty in the global South and the currently rising unemployment, women become particularly vulnerable to exploitation and abuse.25 In a labor market that still is largely divided along gendered lines, sexual or domestic work are two of the few income-generating options available to women who have enjoyed hardly any or only very limited education or training. Because on average, women receive less formal education than men in the global South, they have fewer chances to enter the formal labor market, either in the South or the North. In the international public labor market, there is hardly a specific demand that fits skilled female workers, except health care nurses. The substantive demand in the formal labor market is predominantly targeting unskilled female workers for low-paid jobs in the garment and textile industries, often in very 22 US (2005) Department of State, Trafficking in Persons Report, available at http://www.state.gov/

g/tip/rls/tiprpt/2005/, p. 6. See also: Vlachová, M. & Biason, L. (eds.) (2005). Women in an Insecure World: Violence against Women, Facts, Figures and Analysis, Geneva, Geneva Centre for the Democratic Control of Armed Forces, p. 27. Ehrenreich & Hochschild (2003). Trafficking of women, children for prostitution and forced labor is one of Europe’s most lucrative crimes. According to the UN Office on Drugs and Crime the trade generates between $2,5 and $3 billion per year (International Herald Tribune, June 30, 2010). 23 Ehrenreich & Hochschild (2003). 24 Coomaraswamy, R. (2005). ‘Human Security and Gender Violence’, Economic and Political Weekly, October, pp. 4729–4736. 25 Also Wijers, M. & Lap-Chew, L. (1997). Trafficking in Women, Forced Labour and Slavery-like Practices in Marriage, Domestic Labour and Prostitution, Utrecht, GAATW and STV, p. 43.

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poor working conditions (sweat shops).26 Ultimately, women are pushed predominantly into the informal and therefore unregulated labor markets in the private sector. We find migrant women mostly working in the area of domestic work, child care, as au pairs, and in the in entertainment and sex industry.27 Migrating legally for sex work is virtually impossible. There are no possibilities to obtain a work permit, not even in countries where voluntary prostitution by adult women is legalized. Consequently most low-skilled migrant women are pushed into low-end jobs, or into the illegal or quasi-legal job markets, all of which amplifies their vulnerability to exploitation by traffickers. Due to the limited options for migrating legally, women in particular are left with few other options than to make use of the services of more or less dubious middlemen or intermediate agencies who meet that demand.28 As Wijers and Lap-Chew noted: Poor or lacking legislation and labor standards and the partially illegal or semi-legal character of the work, form the basis for suppressive and exploitative working conditions, varying from humiliating treatment, low payment and extreme working hours to outright forced labor and slavery-like conditions. Women caught in clandestine and informal sectors are hardly in the position to protest or claim their rights.29

Against this backdrop, globalization can be considered as a crucial factor contributing to the increase in trafficking of women. One of the effects of globalization is the increase in demand for low paid service jobs including sex work. Due to the growing number of migrants – legal or illegal – an increasingly large number of workers are separated for prolonged periods of time from their family and community of origin, including their sexual partners. Just as globalization, in the context of an increasing sexualization of Western cultures, has fostered the sex tourism industry (virtually exclusively catering to men), both legally and illegally (i.e. child prostitution), it could be argued that the global migration of labor contributes to the growing public demand for sexual services generally, notably among adult males.30 Seamen in fact exemplify global migrant workers avant-la-lettre who traditionally have attracted prostitutes to their working areas – harbors – to supply the demand for sexual services.31 Another example is the stationing of UN forces which in some areas has constituted an increase in trafficking activities and exploitative practices. With an increased demand of men for heterosexual services, more women are needed for the supply. It has become a profitable market for traffickers. Given that prostitution traditionally had a close link to

26 Arya

& Roy (2006, p. 22). & Lap-Chew (1997, p. 42). Ehrenreich & Hochschild (2003). 28 Arya & Roy (2006, p. 16). 29 Wijers & Lap-Chew (1997, p. 46). 30 This raises the question of why sexual needs of female migrants do not seem to translate into a publicly visible demand for, or supply of, heterosexual male sex workers. However, that is beyond the scope of this chapter. 31 See H. Trotter (2008). Sugar girls & seamen. A Journey into the Worlds of Dockside Prostitution in South Africa, Auckland Park (SA), Jacana Media. 27 Wijers

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organized crime, sexual trafficking is an example of a globalizing economy in the criminal underworld, with women and girls as a profitable commodity. Some authors argue that the root causes of trafficking stem from the abusive nature of (biological) men with respect to women and hence see (male) criminality and “feminization of poverty” as conventional explanations of trafficking.32 Although we recognize that the subordinate position of women in many countries is an important source of violence and discrimination against women,33 including trafficking, subordination in and of itself is the result of a complex set of intersecting variables that cannot be reduced to the biology of the male sex. Trafficking should not be seen in isolation of other phenomena such as the economic and political effects of globalization, indicated above, which have a negative effect on the position of women.

4.2.4 Victims of Trafficking: Identifying Victims’ Needs and Stereotyping Although many women are recruited under false pretenses (promising work as a “waitress” or as a “dancer”) and are unequivocally victims of deception and fraud, sometimes even abduction, some women knowingly agree to do sex work in the country of destination. It is only upon arrival that women are subjected to fake debt-bondage contracts and are forced to work under severe threats (directed at them or their family) and are in fact held hostage because their passports are taken away. Without suggesting to be exhaustive, we can identify several common aspects in relation to the threat and violence used against victims of trafficking.34 The most common means of force used against women (in the case of cross-border trafficking) are to exploit victims’ fear for deportation due to the illegality of the residential or employment status of the victim, as well as (threatening with) physical and/or sexual violence. More subtle means like (emotional) blackmail are common as well, like frightening victims with regard to potential sanctions from the (law enforcement) authorities or misleading the victim by pretending to engage in a love affair with the victim. Traffickers are very creative in finding effective ways to keep the victim under control. Victims often know the person who trafficked them (sometimes a relative), which enhances the risk of retaliation or of being retrafficked. The threat and violence used by the trafficker may also be aimed against relatives of the victim.

32 Dunlop, K. (2008). ‘Human Security, Sex Trafficking and Deep Structural Explanations’, Human

Security Journal, Spring, pp. 56–64. for instance, Article 5 of the Convention on the Elimination of all Forms of Discrimination Against Women. 34 Wijers & Lap-Chew (1997, pp. 86–92). Dutch National Rapporteur on THB (2002). Trafficking in Human Beings, First Report, The Hague. These aspects must not be considered exhaustive but must be seen as a motivation for adopting special protection and assistance measures for victims of THB. 33 See,

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Once it is known that a victim has worked as a prostitute, she is often ostracized in her family and social environment, regardless of the fact that she was forced. The fear of social isolation is a powerful mechanism to force victims into compliance. Although poverty and the abusive conditions they live under are important push factors for women’s migration, it is a misunderstanding to assume that they are helpless without any social or intellectual resources whatsoever. Assuming such a relation between intellect, poverty, and susceptibility to trafficking would lead to a stereotypical and one-dimensional portrayal of the victim of trafficking.35 Acknowledging resilience and agency among victims of sexual trafficking does not deny nor minimize the severity of the crime of trafficking that they fell victim to. The debate on victims’ agency in a context of structural inequality touches directly on an ongoing controversy in political and academic circles on women’s agency when choosing to do sex work. On the one hand, there is the abolitionist position, in which all sex work is considered a form of sexual slavery that amounts to trafficking. Sex workers are essentially and always considered to be victims of a male-dominated culture.36 For example, Dunlop concludes that “until patriarchal assumptions on women are overturned, until male power becomes no longer defined in sexual terms and masculinity and pornography stop emphasizing the primacy of male needs over female dignity, women will be sex trafficked and dehumanized, tortured and exploited for men.”37 The other, more liberal, position holds that we need to acknowledge and respect women’s agency when they choose to engage in sex work. Whether sex work can be considered as forced and as a form of trafficking depends on the circumstances under which sex work is performed.38 This debate is particularly relevant in the context of trafficking because it is the moral connotation of non-respectability that sex work often evokes, which seems to profoundly influence both the legal and the social response to victims of trafficking and sexual exploitation. The predominance of a moralizing approach to trafficking for sexual purposes leads to a contradictory, and even paradoxical, image of the victim. On the one hand, in a legal context, the victim of trafficking is positioned by police and prosecuting authorities primarily as an illegal migrant who willingly decided to leave her country and who therefore should be treated with scrutiny if not outright suspicion.39 This presumes an agentic victim who knowingly subjected herself to risky situations and who is therefore responsible for the negative consequences. On the other hand, in a social context, the victim of trafficking is positioned as in need of 35 Dutch

National Rapporteur on THB (2002, pp. 71–112). a recent example of that position, see Miriam, K. (2005). ‘Stopping the Traffic in Women: Power, Agency and Abolition in Feminist Debates over Sex-Trafficking’, Journal of Social Philosophy, 36, 1, pp. 1–17. 37 Dunlop, p. 64. In a similar vein: Miriam (2005). 38 See Doezema (2002), also Ditmore & Wijers (2003). 39 Song, C. & Lee, S. (2006). ‘Between a Sharp Rock and a Very Hard Place: The Trafficking Victims Protection Act and the Unintended Consequences of the Law Enforcement Cooperation Requirement’, Intercultural Human Rights Law Review, 1, pp. 133–156. 36 For

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support. The response toward victims is moving towards the opposite: the victim is often considered as completely helpless, naive and in need of being rescued. Both positions are inevitably biased when looking at the complexity of factors affecting women’s choices. The construction of the helpless victim implies a denial of victim’s agency on either end of the trafficking route. It not only misconstructs the needs of victims, but also leads to the construction of the real and “worthy” victim, deserving our support, versus the unworthy victim who does not need or deserve support since she is responsible for her predicament of having been trafficked.40 Even if trafficked sex workers initially chose to go abroad to do sex work, they had been led to believe they would do so under different conditions than the slavery-like forced prostitution they were eventually subjected to. Following the definition of the Palermo Protocol, their knowingly entering prostitution does not make women less of a victim if they are eventually deceived and forced to do the sex work. Acknowledging their initial choice does not affect their legal victim status; yet, it is crucial from a practical intervention point of view because it influences their legitimate needs and choices once they exit the trafficking situation. Empirical research among victims of trafficking by Brunovskis and Surtees (2007) reveals that a substantial number of victims of trafficking is offered support, usually by NGOs that do not seem to fit their needs because these NGOs often address them as helpless victims. Organizations often fail to take into consideration the complexities of the social and cultural contexts of origin in which women need to reintegrate, or sometimes actually refuse to return to.41 The study shows that between 10 and 40% of victims of trafficking at one point or another decline the help that is offered to them. A complex set of reasons is given, underlining that victims of trafficking are a heterogeneous group. Victims’ decisions to accept or decline assistance is the outcome of a complex set of considerations depending on the availability of psychological, social and financial resources. Being publicly known as a victim is not an attractive position for many of the trafficked women, and it evokes resistance. Some victims decline assistance because they rather earn money themselves, despite the horrifying working conditions, so they can feel “successful” migrants. Others do not feel victims because at least they did receive some money for the work they did. For some women, being considered a victim is a stigma they want to avoid out of fear of social exclusion because they “failed in going abroad” and did not return with money. Other women indicate they will not always need assistance after they return because they can get it from their own social network. Lack of trust in the help that had been provided was another recurring reason for declining help after victims returned; particularly if accepting such help would imply that the victim was publicly recognizable in her community. Many victims face distrust from

40 Van Dijk, J. (2008). Slachtoffers als zondebokken: over de dubbelhartige bejegening van gedupeerden van misdrijven in de westerse cultuur, Apeldoorn, Maklu. 41 Brunovskis, A. & Surtees, R. (2007). Leaving the Past behind? When Victims of Trafficking Decline Assistance, Fafo report, pp. 17–18.

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their families, who are concerned about their own reputation. Others fear reprisals of the traffickers if they would accept help and identify themselves as victims of trafficking. These results underscore how little systematic knowledge we actually have about the diverging needs of victims of trafficking. This becomes clear when victims of trafficking decide to continue doing sex work after they have been released from the trafficked situation, only this time under better working conditions that allow them to make enough money to send home. They not only face lack of support but outright dismissal.42 The identification of the needs of victims of trafficking for sexual exploitation is often based on an underlying moral approach to sex work and by deeply rooted suspicions against prostitutes as unreliable victims. It exemplifies the ambivalence often encountered by victims of trafficking for sexual exploitation. This ambivalence often translates into positioning the victim of trafficking as either helpless (and therefore a victim worthy of our support) or as completely responsible for her situation (and thus virtually a blameworthy victim). When addressing women’s victimization it is crucial to acknowledge the continuum of victimization and agency in order to capture the complexities of variables affecting women’s victimizations and agentic choices for that matter.43 The current responses to trafficking for sexual exploitation are often dominated by the perspectives and needs of support organizations (governmental and non-governmental), and those of the criminal legal system that focuses on the traffickers and is therefore guided by prosecutorial interests.

4.2.5 Impact of Dominant Legal Responses to Combating Trafficking Nowadays, THB is more difficult to combat because of its diverse and international nature and the growing involvement of organized crime.44 Although combating THB is an item on the political agenda of many states, as well as a duty of regional and international (non-governmental) organizations, there are no indications that the number of persons being trafficked is declining. On the contrary, traffickers and the organized crime groups involved become more sophisticated in finding ways to exploit people. Despite the growing decline in average poverty world-wide, the

42 Bandyopadhyay, N. (2006). ‘Streetwalkers Show the Way. Reframing the Debate on Trafficking from Sex Workers’ Perspective. Institute of Development Studies Bulletin, 37, 4, pp. 102–106. 43 For a similar dynamic the conceptualization of the victim of domestic violence, see Schneider, E. (2000). Beyond Victimization and Agency. In: Schneider, E. (2000). Battered Women & Feminist Lawmaking. New Haven, CT, Yale University Press, pp. 74–97. Also: Römkens, R. (1996). ‘Zwei Seelen in einer Brust.’ De partnerdoodster als slachtoffer en dader’, in: Römkens, R. & Dijkstra, S. (eds.) (1996). Het omstreden slachtoffer. Geweld van vrouwen en mannen. Baarn, Ambo, pp. 77–100. 44 Rijken, C. (2003). Trafficking in Persons. Prosecution from a European Perspective. The Hague, T.M.C. Asser Press, pp. 5–7, 201–241.

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2008 data indicate a dramatically rising poverty rate in developing countries.45 This growing gap worldwide between the poor and the rich underlines the growing force of poverty as one of the basic push factors for migration. The dominant legal responses to THB have been located in criminal and migration law. As a result, the interests of victims of THB are inevitably considered to be a secondary concern compared to prosecution and control of migration.46 Controlling migration flows or the gathering of useful testimonies of victims in the interest of prosecution of the traffickers, more specifically to take measures against organized crime, receive more attention than the prevention of THB or the protection of victims. This clearly follows from the fact that the Palermo Protocol is a protocol to the UN Convention against Transnational Organized Crime, which means that THB is merely perceived from an organized crime perspective. In addition, the provisions for the protection of and assistance to victims of THB in the protocol are discretionary (non-mandatory) provisions. During the negotiations leading up to the Palermo Protocol it was not possible to adopt more binding provisions because of the economic interests of both developed and developing countries. The developed countries that receive most trafficked persons are concerned about providing “rights” to illegal migrants, whereas developing “sending” countries are concerned about the costs of taking on obligations to provide assistance to returned victims of trafficking.47 To make counter-trafficking efforts more balanced, we must look beyond criminal law. As THB is a complex crime, it requires action in various fields other than merely criminal law, for instance, labor law, migration law and development policies. In order to address THB more effectively, the idea that counter-trafficking strategies have to be developed in all these fields and in a coordinated way is gaining ground. This is what is called an integrated approach to THB.48 As the severe violation of a person’s human rights is the most objectionable element of trafficking, using a human rights based framework might be helpful to develop such an approach. Although some recent studies have taken initial steps towards the identification of the human rights obligations in relation to THB, this has been done from the perspective of states.49 However, human rights were written in the first place for 45 Growing

Unequal? Income Distribution and Poverty in OECD Countries, OECD publishing, October 2008. 46 GAATW (2007). Collateral Damage, The Impact of Anti-Trafficking Measures on Human Rights around the World, Bangkok. See also: Ditmore & Wijers (2003) who point out that this focus of government officials on prosecutorial interests was obvious during the negotiations of the UN Palermo Protocol. 47 Ditmore & Wijers (2003, p. 85). 48 See, for instance, the Report of the European Expert Group on Trafficking in Human Beings, Brussels, December 2005, pp. 62–64, and the EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings, OJ, C 311, 9 December 2005, p. 1. 49 Obokata, T. (2006). Trafficking of Human Beings from a Human Rights Perspective, Towards a Holistic Approach, Leiden, Martinus Nijhoff Publishers, and Gallagher, A. (2006). Human Trafficking: International Law and International Responsibility. Dissertation, Utrecht, Unpublished.

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the benefit and protection of individuals. As the human rights violations of victims of THB are seen as the most devastating features of the crime of THB, it is vital that we explore what human rights can mean for victims of THB in order to meet their needs. Putting the victim at the center when determining counter-trafficking policies might provide guidance when developing an integrated approach based on human rights.

4.3 Human Rights Obligations in Relation to THB 4.3.1 The Human Rights Framework in Relation to THB THB has been addressed in some international human rights law instruments, and human rights law provisions have been adopted in some of the conventions specifically drafted to combat THB. The most important will be discussed here.50 The most specific reference to THB in human rights law can be found in Article 6 of the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). This article states that “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.” General Recommendation No. 19 reiterates THB as a practice that puts women in a position of special risk of violence and abuse.51 Article 8 of the International Convention on Civil and Political Rights (ICCPR) prohibits slavery and forced and compulsory labor. Although slavery must be understood in its traditional form under this Convention, meaning the ownership over a person,52 some forms of THB can be considered a form of slavery and more easily a form of forced or compulsory labor. The slavery conventions might be applicable in THB cases; although, in the Slavery Convention of 1926, slavery is understood in the same narrow way as in the ICCPR.53 The supplementary Convention on Slavery and Slavery-like Practices54 is applicable for some forms of THB.55 The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography must be considered relevant as well. 50 Only

the documents on the international level will be mentioned. For an overall overview of human rights obligations in relation to THB, the instruments adopted on the regional levels must be taken into account as well. However, it is not our aim to provide such an overview but an exploration of the possibilities of human rights law in addressing THB. 51 General Recommendation 19 on Violence against Women, U.N. Doc. A/47/38 at 1 (1993). 52 Bossuyt, M.J. (1987). Guide to the ‘Travaux Préparatoires’of the International Covenant on Civil and Political Rights. Dordrecht, Nijhoff, p. 165. 53 It is stated in Article 1, paragraph 1 of the 1926 Slavery Convention that slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. 54 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, entered into force on April 30, 1957. 55 Rijken (2003). pp. 74–79.

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Looking at the specific conventions on THB, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1951) can be seen as an important document.56 This Convention is not primarily a human rights document as it mainly takes a criminal law perspective from an abolitionist point of view that all forms of THB as well as prostitution must be prohibited. Some provisions in this Convention address the protection and support of victims of THB but in very general terms.57 Another crucial document is the Palermo Protocol (2000) to the UN Convention on Transnational Organized Crime, mentioned above. Although Articles 6, 7 and 8 of this Protocol refer to assistance to, the legal status of, and the repatriation of victims of THB, and thus indirectly refer to the human rights of THB victims, these provisions are formulated in a non-binding way which means that states are not obliged to adopt these measures.58 At the EU level, the EU Framework Decision on Combating THB was established in July 2002.59 This document only refers briefly to the rights of victims through the Framework Decision on the Standing of Victims in Criminal Procedures. This is different from the EU plan on best practices, which states that the EU recognizes the importance of a human rights and victims-centered approach.60 In contrast to the Framework Decision, this plan is a non-binding instrument. In March 2010, a proposal was launched to amend the Framework Decision which focuses more on victims’ rights and the causes of THB.61 An exception in a positive sense is the regional Council of Europe Convention on Action against Trafficking where the human rights of the victims are taken as the starting point. A non-binding document worth mentioning here is the Recommended principles and guidelines on human rights and trafficking.62 In light of this overview of the relevant human rights instruments that directly or indirectly regard THB, the question is whether these rights can be enforced by individuals who are victims of THB and whose rights have been violated. Apart from the fact that the perpetrator of a crime may be found liable for harm to the victim of that crime, the question arises whether the occurrence of THB and thus the fact that human rights have been violated may also lead to specific obligations of the state in which the trafficking took place. It has been established that states

56 UN

Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, UNTS 271, entered into force in July 1951. 57 For instance, Articles 16 and 19. 58 For instance, paragraph 3 of Article 6: “Each state party shall consider [. . .].” 59 Council Framework Decision on Combating Trafficking in Human Beings, OJ L 203, 1 August 2002, currently under revision, see footnote 61. 60 EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings, OJ C 311, 9 December 2005. 61 Proposal for a Directive on preventing and combating trafficking in human beings and protecting victims, repealing Framework Decision 2002/629/JHA, COM(2010)95. 62 United Nations High Commissioner for Human Rights, Principles and Guidelines on Human Rights and Trafficking, E/2002/68/Add.1 (2002).

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do not merely have negative obligations (an obligation to refrain from violations) in relation to human rights but have positive obligations as well. This was made clear in the tripartite typology which indicates that, for each human right, states have an obligation to respect, to protect and to fulfill. When considering the relevant international instruments, both CEDAW and the ICCPR have an Optional Protocol providing for an individual complaints procedure for victims whose rights under the relevant Convention have been violated. In case of CEDAW, it is also possible to file a complaint on behalf of a victim or group of victims. Article 6 CEDAW, so far, has not been the subject of any complaints before the CEDAW Committee. The Human Rights Committee dealing with the complaints under the ICCPR has taken views on Article 8 in some cases but none with respect to THB. Although the views of the Committees are not binding, they can be seen as authoritative interpretations. Complaints of individuals may concern a violation of any of the provisions in the specific convention and are always directed against a state. The obligations adopted in the conventions are after all directed at the states as addressees of the conventions.63

4.3.2 State Obligations Based on Human Rights in Relation to THB If a human rights based approach could provide protection and assistance for victims of THB, it can only be in the form of obligations for states, since they are the primary legal subjects of any human rights law.64 Obokata (2006) identified four core state obligations in human rights law that particularly apply to THB: the obligation to prohibit trafficking, to punish traffickers, to protect victims, and to address the causes and consequences of the act.65 These four obligations reflect similar standards in several UN documents on what a human rights based approach to violence against women would imply. There the need of the “three Ps” perspective is emphasized: prevention, protection of victims and punishment of perpetrators, while

63 In case of THB the violator is usually not a state but an individual or a group of individuals. Even

though nowadays the view has been adopted that non-state actors also have responsibility to protect indiviudals against human rights violations, this does not mean that human rights obligations automatically have their effect in horizontal relations between citizens. See, for instance, Clapham, A. (2006). Human Rights Obligations of Non-State Actors, Oxford, Oxford University Press. 64 On positive state obligations, see: Mowbray, A.R. (2004). The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Oxford, Hart, Okafor-Obasi, O. (2003). The Enforcement of State Obligations to Respect and Ensure Human Rights in International Law, Potsdam, Potsdam MenschenRechtsZentrum der Universität, Marshall, J. (2008) ‘Positive Obligations and Gender-based Violence: Judicial Developments’. International Community Law Review, 2, pp. 143–169. 65 Obokata, T. (2006) ‘A Human Rights Framework to Address Trafficking of Human Beings’, Netherlands Quarterly of Human Rights, 3, pp. 379–404.

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simultaneously emphasizing that any effective implementation of these obligations is dependent on underlying coherent policies.66 Criminalization of THB as part of states’ obligation in fighting THB stems from this obligation, that has been adopted in many international documents on THB.67 The definition of THB in the Palermo Protocol has given a positive impulse to criminalizing THB in various legal systems across Europe. The European Court of Human Rights considered effective criminalization of the forced labor provision (Article 4 ECHR) an obligation in relation to THB in the case of Siliadin v. France.68 In this case, a Togolese girl came to France as a minor and was put to work in the housekeeping of a French Togolese family. She had to work many hours, 7 days a week with virtually no leave. She had to sleep on a mattress on the floor of the children’s bedroom and was not paid. She was not allowed to go to school, her passport was taken from her and, although this had been promised, her stay was not regularized. Given the facts and the circumstances of the case, this would constitute the crime of THB, as defined in the Palermo Protocol. Yet, at that time, the French Criminal Code did not include a specific provision on THB, so the suspects were prosecuted under another provision of the penal code. In line with its earlier case law, the Court argued that Article 4 ECHR gave rise to positive obligations on the States Parties, consisting of the adoption and effective implementation of criminallaw provisions, making the practices set out in Article 4 a punishable offense.69 In more concrete terms, the Court holds that states were under an obligation to penalize and punish any act aimed at maintaining a person in a situation incompatible with Article 4. This not only goes for violations resulting from acts of state (or its representative bodies), but also for acts of private individuals. Because France did not have adequate criminal legislation that unambiguously made the relevant behavior punishable, and since the perpetrators of this behavior had not been convicted in national procedures, the Court ruled that the state had violated its positive obligations under Article 4.70 The mere criminalization of THB and related offenses, however, is not enough, certainly not from a human rights perspective. As with any law, its force lies for a good part in its implementation and enforcement. It also requires an effective criminal legal system that is responsible for investigation and prosecution of THB.

66 See

Report of the Special Rapporteur on violence against women, its causes and consequences (2006). ‘The Due Diligence Standard as a Tool for the Elimination of Violence Against Women’, E/CN.4/2006/61, para. 29. 67 Obokata (2006) and Gallanger (2006), pp. 275–280, 289–294. Article 5 Palermo Protocol, Article 18–26 of the Council of Europe Convention on Action against Trafficking in Human Beings. 68 According to Article 4 ECHR, no one may be held in slavery or servitude or may be required to perform forced or compulsory labour. European Court of Human Rights, Siliadin v. France (July 26, 2005) (appl. no. 73316/0). 69 Haveman, R. & Wijers, M. (2005). Note to the case of Siliadin v. France, in Rechtspraak Vreemdelingenrecht, no. 2005/99. 70 Rijken, C. & Koster, D. ‘A Human Rights Based Approach to Trafficking in Human Beings in Theory and Practice’, published as working paper on SSRN, available at: http://search.ssrn.com/ sol3/papers.cfm?abstract_id=1135108.

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These and other obligations are further elaborated upon in the Rantsev case.71 This case concerned ms. Rantseva, a woman who had been trafficked from Russia to Cyprus and who died under unclear circumstances having fallen from a window of a private home in Cyprus. She had entered Cyprus on an ‘artist’ visa and had worked as a performer in Cyprus. In Cyprus working as an artist is synonymous with working as a prostitute. The Rantsev case must be considered a landmark case because it explained and broadened the positive obligations for states under Article 4 ECHR. The court explained that having a legal provision prohibiting THB is not sufficient but that States need to have an appropriate legislative and administrative framework in place to combat THB. Furthermore, it stated that States have the positive obligation to take protective measures and the procedural obligation to investigate trafficking, including to seek international cooperation if required. For the country of origin, the Court further explicated that an obligation to investigate the recruitment, including the methods of recruitment, does exist. Following this decision of the ECtHR it is clear that the obligations for States in relation to THB also concern the protection of victims. The Court is less explicit on the state obligations for the prevention on THB. 4.3.2.1 The Obligation of Due Diligence It is relevant to consider how the doctrine on positive obligations of states – notably the obligation of due diligence – with regard to protection of victims of domestic violence has evolved.72 Under the Optional Protocol, the CEDAW Committee has elaborated on this in several communications. On the basis of General Recommendation 19 on violence against women, the Committee has recently concluded in other cases that states may be held responsible for the consequences of private acts of domestic violence if states fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation. This reflects that, from a human rights point of view, states are required to go beyond mere criminalization of a prohibited act. The ECHR ruling of 2009 in the case of Opuz v. Turkey represents a historical and authoritative step further in the interpretation of the positive obligation of states to protect (potential) victims with due diligence.73 For the first time in history, the ECHR ruled that the failure of the state to provide adequate protection to women who are obviously at risk of being violently abused by an intimate partner (in this case by an ex-husband), constitutes a violation of the right to life (Article 2 ECHR) and a violation of gender equality (Article 14 ECHR). States have a positive obligation to take preventive operational measures to protect an individual from the criminal

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Court of Human Rights, Rantsev, Cyprus and Russia (January 7, 2010) (appl. No. 25965/04). 72 Communication 6/2005, Vienna Intervention Centre against Domestic Violence and others v. Austria, 6 August 2007, Communication 5/2005, Vienna Intervention Centre against Domestic Violence and others v. Austria, 6 August 2007, and Communication 2/2003, A.T. v. Hungary, 26 January 2005. 73 European Court of Human Rights, Opuz v. Turkey (June 9, 2009) (appl. No. 33401/02).

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acts of another person where they “knew or ought to have known” of a “real and immediate risk to the life of (an) identified individual(s) from the criminal acts of a third party and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” With regard to the right to equal treatment, the ECHR referred to the importance of CEDAW when it argued that it has to take into account more specialized international instruments and decisions of other bodies, notably CEDAW, the Commission on Human Rights, and the Belém do Pará Convention (Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women). The ECHR explicitly underlined the authoritative status of these international human rights instruments, ruling that these instruments show that, under international law, “a state’s failure to protect women from domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional.” 4.3.2.2 The Obligations to Protect and Assist Victims and to Address the Root Causes of THB The third obligation identified by Obokata is the obligation to protect victims of THB, which encompasses an obligation to assist as well. Although most of the instruments on combating THB discussed above include a reference to the protection of victims, it is often in non-binding terms or from a prosecutorial perspective. At the (European) regional level, the Council of Europe Convention on Action against Trafficking is a positive exception to the practice of addressing the position of victims of THB as a secondary matter as this Convention takes the rights of the victims as the starting point. Chapter III, Articles 10–17, and especially Article 12 include the protective and assisting measures for victims of THB. The fourth obligation is to address the causes and consequences of trafficking. As was discussed before, one of the main causes of THB is an increased inequality as a consequence of globalization which leads to increased poverty of economically disadvantaged groups. Obokata touches upon a fundamental issue when it comes to states’ responsibilities and/or obligations. This requires addressing economic and social causes, the regulation of which is profoundly influenced by political as well as economic and financial interests.

4.3.3 Limitations of a Human Rights Based Approach to THB In the context of our argument in this chapter, focusing on legal preconditions to protect and assist victims of trafficking, the third and fourth obligations that Obokata identifies are most relevant to reflect upon more closely. Following Obokata, we wish to argue that a human rights framework can play a useful role as a compelling legal normative framework that can push states to effectively address THB. However, there are a few critical questions that deserve further consideration, both from a theoretical and a practical perspective. Firstly, there are profound limitations as regards the enforceability of the human rights obligations identified. Any human rights document is after all directed at

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states as the legal subjects upon whom certain obligations rest to protect or prevent violations of these rights, whereas the victim’s human rights are violated by individuals or groups of individuals. This means that a victim cannot file a claim for violation of his/her human rights by an individual or a non-state actor directly on the basis of these international human rights documents since the victim is not the addressee of these documents. The victim can only hold the state accountable for violations if the state did not comply with its obligation, in this case to protect against and prevent trafficking, under human rights law. Looking at other domains, like human rights conventions in the field of violence against women, we have seen that these state obligations have been specified. Furthermore a development towards making non-state actors more responsible in relation to (non-enforceable) human rights obligations is ongoing which might also have an effect in relation to responsibilities of individuals as regards violations of the human rights of victims of THB. Since these obligations are non-enforceable, it largely depends on the political will of states to act in conformity with their human rights obligations in relation to combating THB. Secondly, Obokata does not address the underlying question about the compatibility of these obligations. Where he states that a human rights based framework enables the conceptualization of a victim-centered approach, he does not address the tensions that are currently manifest in practice. The tendency to focus on criminalization in trafficking is dominant and therefore prosecutorial interests are often foregrounded, at the expense of protection of the victim and of victims’ rights and of addressing the structural causes and consequences of THB. We will return to the victims’ rights in the following sections of this chapter. At this point we can conclude that obligations that could be based on a human rights framework are not equally addressed neither in the legal domain nor in policybased practice. Assisting and protecting victims, as well as addressing the causes and consequences of THB are seen as a subordinate matter to the criminal law response. States increasingly articulate that a human rights based approach to THB should be adopted but they do not seem to be prepared yet to pay attention to fulfill all these obligations equally. As we will see in the next section, this does not mean that states, especially the countries of destination, have not adopted any provisions to address victim protection and assistance at all.

4.4 Legal Protection and Psycho-Social Assistance of Victims of Trafficking in Human Beings 4.4.1 Current Legal Provisions for Victim Protection and Assistance In general, over the past two decades, victims of crime have received more attention in law, particularly in criminal law and procedural law. The prime example of measures taken in the EU is the Framework Decision on the Standing of Victims

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in Criminal Proceedings and the Directive related to Compensation for Crime Victims.74 The general provisions on assistance and protection for victims of crime in these instruments include, inter alia, legal assistance, the right to protection, specific assistance, the right to receive information, respect and recognition. For victims of trafficking, these provisions for victim assistance and protection are in a way too general and not directly suitable for their special protection and other needs. The special needs of victims of trafficking are a consequence of the specific character of the crime of trafficking, as mentioned in Sections 4.2.2, 4.2.3, and 4.2.4. Given these specific aspects, it is clear that the ordinary protection and assistance mechanisms can be helpful, but are not sufficient and must therefore be extended with more specific measures applicable to victims of THB. The attention for victims of trafficking in countries of destination came only with the realization that testimonies of victims are indispensable when bringing a suspect of THB before the court in order to successfully prosecute the perpetrators, as other hard evidence is often not available. At the same time, it was acknowledged that victims are in a particularly vulnerable position, as the perpetrators often know the victims and their relatives, which makes them an easy target for threats of reprisals if the victims testify. The victims have after all been made dependent on the traffickers. They usually come from abroad; they do not know the country and generally do not trust the police. Moreover, when they come from abroad, they usually do not have a valid residence and/or work permit. Their illegal status makes them reluctant to report to the police out of fear of being deported. It strengthens their reluctance to testify against their traffickers for fear of reprisals. Therefore, many countries of destination have adopted the possibility to provide a residence permit to victims who collaborate with the prosecutor’s office and testify. The ultimate goal is to obtain more testimonies and potential evidence to ultimately convict the trafficker. In that way, protection and assistance to victims have been made dependent on the willingness of victims to cooperate with the authorities and are temporary: eventually most victims need to return after they have testified, even if they have reasons to fear for their safety in the country of origin. In the long run, victims’ interests become secondary to prosecutorial interests75 . In countries of origin, governments often do not recognize it as the state’s responsibility, let alone as an obligation to adopt measures to protect and assist (returned) victims. This is often left to NGOs. Although by now a range of measures has been adopted by several states to better

74 Council

Directive 2004/80/EC of 29 April 2004 relating to Compensation to Crime Victims, OJ L 261, 06 August 2004, pp. 15–18, Council Framework Decision of 15 March 2001 on the Standing of Victims in Criminal Proceedings, OJ L 082, 22 March 2001, pp. 1–4. Groenhuijsen, M.S. & Letschert, R.M. (2008). Compilation of International Victims’ Rights Instruments, 2nd (revised) edition, Nijmegen, Wolf Legal Publishers. 75 This risk is inherent to invoking criminal law. See: Römkens, R. (2006), Protecting Prosecution. The powers of criminal law to protect victims of stalking. Violence Against Women. 2, pp. 160–187.

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protect and assist victims of THB – measures that take into account their vulnerable position – there remains a gap between the law on the books and the law in practice. If the provisions in international instruments addressing victim assistance and protection measures were truly mandatory and have actually been implemented, it would oblige states to take the following measures at a minimum.76 As soon as there is an indication that a person is a victim of THB, that person must be informed of her rights. Protection of victims from the very first moment entails that the victim must be provided with accommodation in a safe house. If a victim of trafficking has no valid residence permit, s/he should be granted a (temporary) residence permit on humanitarian grounds, simply because s/he is a victim of trafficking. Whether or not the victim is willing to testify in criminal proceedings should be irrelevant. Deportation should be avoided. A reflection period, in which the victim can be supported through emergency care, should be provided to allow the victim to decide about filing a complaint against the trafficker and to give the victim some time to recover. Victims should be directly referred to a specialized NGO which arranges the accommodation, assistance, and aid. Victims of trafficking must be provided with specialized medical care with an eye to having contracted sexually transmitted diseases due to being forced to have unprotected sex; as well as legal aid, especially concerning the juridical consequences of filing a complaint and testifying. For victims of trafficking, it is extremely important that they are immediately and adequately informed of the criminal procedure and the decisions that are taken in that regard. For instance, it is important for victims to know whether the accused will remain in detention or not and what kind of restrictions he has in custody. Special attention should be paid to possible retaliatory threats to relatives of the victim. Assistance should be given in providing safety and security for relatives. This is what states at the least should do if they take the human rights based obligation seriously as a starting point to protect and provide assistance to victims of trafficking. Unfortunately, even on a global scale not even one state has effectuated these obligations. And even if a state has adopted special protection and assistance programs for THB victims that does not mean that the victims’ needs are always taken as a point of departure, as was discussed before. It is telling that alarmingly high percentages of victims decline assistance.77 We can conclude that there is a growing awareness among states that a criminal law response to THB is not sufficient. However, in order to give real priority to a human rights based approach towards THB, measures regarding protection of 76 These measures are mainly based on the, sometimes non binding, provisions on victim protection

in the Council of Europe Convention on Action Against THB, the Palermo Protocol, EU Directive 2004/81/EC on residence permits issued to third-country nationals who are victims of trafficking or who have been the subject of an action to facilitate illegal immigration or who co-operate with the competent authorities, 29 April 2004, and the Dutch and US national procedures for the protection of victims of THB, the B9-procedure and the US Trafficking Victims Protection Act. 77 Brunovskis & Surtees (2007, p. 41).

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and assistance to victims, as well as developing policies that address the causes and consequences of trafficking, have to be taken more seriously. In many (THB) documents, measures on victim protection and assistance are proposed, but often in a non-binding way. It depends on the political will whether these measures will be implemented or not. Ultimately the question is whether the measures taken do comply with the needs of the victims. As discussed before, victims of trafficking are a heterogeneous group and require more attention to individual needs. The majority of currently proposed assistance measures for victims of sex trafficking are guided by ideological positions regarding prostitution, sex work and trafficking, and do not necessarily match victims’ needs. In order to be more effective, the needs of the victims should be taken as the starting point. That leaves us with the question what is needed to make assistance to victims truly empowering.

4.4.2 A Victim Assistance and Protection Package (VAPP) for THB Victims Across countries we see that several measures are adopted to protect and help victims of THB, including provisions for a temporary residence permit,78 but usually measures can only be granted when victims cooperate as a witness and as long as their presence is required for the prosecution of the offender. This implies that migration status and assistance and protection are fully determined by decisions taken in a criminal procedure. When this procedure ends, the victim is left emptyhanded, regardless of the reason for termination and regardless of the needs of the victim. No matter how important the victim’s rights are that have been granted in the international and regional instruments on victims’ rights in criminal proceedings, they are limited when it comes to offering a broader package of support provisions that aims to go beyond the criminal procedure. It is necessary to de-link criminal law and migration law and to offer victims of trafficking the necessary protection and broader support and assistance irrespective of their status, whether they entered a country legally or not and regardless of their cooperation with the prosecuting authorities. A customized Victim Assistance and Protection Package (VAPP) should be developed to support victims. In this package assistance and protection measures should be made available that victims can choose from, depending on their specific needs at that very moment. The underlying principle is not how to obtain testimonies but how to achieve empowerment of victims and prevention in the long run. Victims of THB should be allowed to decide what kind of assistance they need. Adjusting assistance and protection according to these needs is a more effective way to prevent retrafficking of victims, to limit the consequences of THB for victims and to strengthen victims’ agency.

78 In

the Palermo Protocol, EC Directive 2004/81, Convention on Action against Trafficking, Council of Europe 2005.

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The VAPP should be made available to all victims of trafficking, whether (illegal) alien or national, whatever the form of exploitation and the characteristics of the perpetrator behind the trafficking.79 The decisive factor should be whether or not the person is a victim of the crime of THB, not the legal position in the country or the form of the exploitation or the characteristics of neither the traffickers, nor the cooperation with the authorities in a criminal procedure. The content of a VAPP needs to find its basis in victims’ needs. The prevention of violations of victims’ human rights needs to be the focal point in order for any intervention to be helpful to the victims of THB.80

4.5 Human Rights and the Use of Human Security as an Instrument to Identify the Needs of Victims of Trafficking To identify the needs of the victims, in order to be able to better serve the victims of THB, we propose that the concept of human security might be helpful as a way to cross the bridge between a narrow human rights based framework, that primarily identifies states’ obligations, and an expanded interpretation of human rights obligations (including obligations based on victim rights) that allows to include a perspective on the protection of and assistance to victims and on how to address the causes of victimization, in this case of trafficking. Human security is a relatively new concept that was internationally launched in the Human Development Report of 1994.81 The concept is gaining ground in Europe as a conceptual tool to reconsider issues regarding safety and international conflict in a way that allows taking individual citizens’ needs for security into consideration, not only state security.82 Although there is no internationally accepted overall definition of human security, it can be stated that the two major components of the concept are freedom from fear and freedom from want.83 It expands the focus from the security centered on states to including the security of individuals, 79 This

raises new questions on how to identify the victims. As appears from the research of Brunovskis and Surtees, victims who, on the basis of the definition in the Palermo Protocol, can objectively be identified as victims do often not correspond with the subjective experience of the victims, because a complex of factors play a role in whether they regard themselves as victims of THB or not. Brunovskis & Surtees (2007, pp. 135–146). 80 The fact that the needs of victims must be recognized and taken into consideration is reflected in the publication of the UNODC, Needs Assessment Toolkit on the Criminal Justice Response to Human Trafficking, New York, 2010. 81 UNDP, Human Development Report, 1994, Oxford, Oxford University Press. 82 See A Human Security Doctrine for Europe. The Barcelona Report of the Study Group on Europe’s Security Capabilities, Barcelona, 15 September 2004 (presented to EU High Commissioner for Foreign and Security Policy Javier Solana), p. 10. 83 On the definition of the Human Security concept, see Human Security Centre (2005). Human Security Report 2005, Canada, The University of British Columbia, p. VIII, Human Security Now, Commission on Human Security, Protecting and Empowering People, New York, NY, 2003,

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which means that humans are at the heart of the concept of security. In a recent EU expert report on a new European Security Strategy, it has been argued that moral, legal, and pragmatic reasons point to the need of using human security as a basis for future policy and legal developments in the realm of global security. Morally speaking security refers to the right of common humanity to live with dignity and safety. Legally speaking it is argued that basic human rights treaties not only give the right to a state but also impose an obligation on the state to concern itself with the human security of its citizens. It is considered a form of realism, not just idealism to address the causes of insecurity at its source. As guiding principles, the report points, inter alia, to the primacy of human rights and to a bottom-up approach that takes account of the most basic needs of the people who are affected by violence and insecurity.84 If we apply this to trafficking for sexual exploitation as a profound threat to the security of many individuals, mostly women, it calls for an understanding of the growing vulnerability of poor people, notably women, to suffering from economic hardship and poverty which forces them to find new ways to generate income to support their (extended) family. The freedom from fear of being trafficked or of being exploited is the ultimate aim when applying the concept of human security in relation to THB. In the process of realizing this aim, the concept of human security might be helpful to identify the needs of the (potential) victims in order to develop the specific content of a VAPP. Trafficking for sexual exploitation is a telling example of how threats to individuals’ human security and the threat to global security via the expanding powers of organized crime and informal criminal networks come together. It is vital to understand the nature of the threats to human security that victims have experienced in order to be able to effectively address trafficking as one of the growing threats to international security and stability. It implies that it is imperative to give a voice to the victims, to understand their reasons to migrate, and to their needs for assistance and protection in the country. Applying the concept of human security as a guiding perspective when interpreting legal obligations might be helpful to balance the focus in migration law between the interests of the state to protect its borders and the interests of the migrating individual. The ultimate goal is to create legally valid options for these women to improve their living standard through migration, without making them more vulnerable to trafficking practices. Migration is traditionally considered from a macro-economic and/or state security point of view. It is considered an economic necessity in times of labor scarcity and a risk or threat to a state’s security when the labor market has enough supply. This focus on states’ economic and social concerns leads to restrictive immigration policies which in fact contribute to the proliferation of traffickers and smugglers. This then brings about a vicious circle in which migrants, traffickers, smugglers,

pp. 1–14, Tadjbakhsh, S. & Chenoy, A. (2007). Human Security. Concepts and Implications, London, Routledge, pp. 39–71. 84 Barcelona document, pp. 9–10, 17.

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and states’ border patrols are caught. When considered from the perspective of the migrant and taking the concept of human security into account it can be argued that migration is a way to protect and achieve human dignity and security, for instance, when migrants flee a country in war or when they try to improve their dire economic situation or (try to) escape from poverty. The latter perspective allows addressing the question of empowerment of individuals which can only take place when a basic form of security is guaranteed through more open migration laws giving these women a possibility to migrate legally. The same reasoning can be applied to victims who have been exploited in destination countries, as human security (the freedom from fear) is a way to focus on the needs of the victims. The challenge is to concretize the concept of human security for victims of trafficking and to use it as a tool to translate it into the needs of victims and, in this way, to contribute to deciding on the content of the VAPP. As indicated above, protection measures for victims of THB so far have mainly been motivated by prosecutorial (i.e. state) interests. Here again, a move from state security to human security can bring the victim to the forefront and give meaning to the state’s obligation to protect and assist victims of trafficking. The concept of human security aims at the protection and the empowerment of the individual as well as society as a whole. Personal security relates to the protection against violence, against threats from states or other actors, and other events which are beyond the control of peoples and communities. Empowerment of individuals and communities is aimed at creating an environment in which people can make decisions based on their specific needs and desires and which builds on the efforts and capabilities of those directly affected. Defining what affects trafficking victims’ insecurity is important when identifying the needs of victims that have to be met in order to be able to restore a basic sense of human security. Several dimensions can be identified, such as threats and reprisals, medical and psychological afflictions and/or conditions, lack of a social network, their initial willingness to work in prostitution, the possibility of redress.85 Further empirical research on the needs of victims of THB is required to fully identify these needs and thus to decide on the content of a VAPP as a way to restore the security of the victim.

4.6 Conclusion The crime of trafficking in human beings is often committed across borders. It requires a creative and often courageous reply from both states and international non-governmental organizations. Until now, the activities to combat trafficking in human beings have been primarily rooted in criminal law. This reflects the focus on states’ prosecutorial and punitive strategies to protect the state’s safety, a strategy that can only to a limited extent be sensitive to the needs of victims. Victim assistance and protection measures, if adopted at all, have been pushed towards the 85 Rijken,

C. & Van Dijk, J.M. (2007) ‘Hulpverlening aan slachtoffers van mensenhandel; mensenrecht of beloning’, Justitiële Verkenningen, 7, pp. 23–38.

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margins of current policies on trafficking. An approach needs to be found beyond criminal law that brings the position of the victim more to the forefront. From a human rights perspective, it can be argued that states have the obligation to go beyond a strictly punitive approach and develop preventive and protective measures for victims. However, when taking human rights law as a legal framework to respond to trafficking, the different state obligations that can be argued to flow from it illustrate the imbalance between prosecutorial interests and victims’ interests. The measures currently undertaken often fail to take the needs of the victims as the starting point. We have suggested that deploying the concept of human security can provide an important step forward in developing a more integrated and comprehensive policy to combat trafficking; it not only takes the victim’s security as a frame of reference, but integrates victims’ security and victims’ needs. Since the group of victims of THB is far from homogeneous, it is important to tailor protection and assistance measures to the diverse needs of the victims. A package should be available from which the victim can choose what s/he needs in her/his particular situation. We have called this a Victim Assistance and Protection Package (VAPP). To determine the content of this package, further empirical research on the needs of victims of THB is required. Such research will provide a better understanding of victims’ reasons to decide to make use of the assistance that is offered or not, and what victims need for their empowerment in order to become less vulnerable to traffickers, to prevent revictimization, and to curb the negative consequences of trafficking.

Chapter 5

Transnational Organized Crime, Civil Society and Victim Empowerment Jan van Dijk

Corruption hurts the poor disproportionately by diverting funds intended for development, undermining a government’s ability to provide basic services, feeding inequality and injustice, and discouraging foreign investment and aid. Former Secretary-General Kofi Annan1

5.1 Introductory Remarks Organized crime has over the past 30 years been expanded and transformed by increased globalization.2 Like legitimate business people entrepreneurial criminals are increasingly free to move their operational activities to those places with the best chances for high profits.3 Globalization allows them to operate on the global markets in illicit products such as drugs, cheap labor or firearms.4 E-commerce has opened unprecedented opportunities for committing sophisticated fraud across borders or selling child pornography.5 In addition, electronic banking allows criminals to stash away illegal assets in financial havens out of reach for governments where predicate offenses have been committed.

J. van Dijk (B) International Victimology Institute (INTERVICT), Tilburg University, 5000 LE Tilburg, The Netherlands e-mail: [email protected] 1 Kofi Annan, in his statement on the adoption by the General Assembly of the United Nations Convention Against Corruption. 2 Levitsky, M. (2003). ‘The Dark Side of Globalization’, International Studies Review, 5, 253. 3 Gros, J.-G (2003). ‘Trouble in paradise; crime and collapsed states in the age of globalization’, British Journal of Criminology, 43, 63–80. 4 Raustiala, K (2001). ‘Free Trade Pact a Boon to Drugs Dealers’, UCLA Today, 22 May, 2001. 5 Grant, A. David, F., & Grabrosky, P. (1997). ‘Child Pornography in the Digital age’, Transnational Organized Crime, 3, 171.


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Emerging forms of transnational organized crime pose serious problems for domestically oriented law enforcement and judiciary institutions. Governments are handicapped in combating transnational crime by their reliance on frameworks and tools designed for the control of domestic crime on national territories. Existing legal mechanisms for international cooperation in investigation and prosecution are found to be wanting. To tackle transnational or global crime, governments are urgently in need of more adequate legal and operational tools. Towards the end of the last century consensus emerged about the need for a new global framework for cooperation against organized crime.6 In 2000, the members of the United Nations assembled in large numbers in the city of Palermo to sign the United Nations Convention against Transnational Organized Crime (UNTOC) and its protocols against human trafficking and smuggling of migrants. For the mayor of Palermo, Leoluca Orlando, the High Level Signing Ceremony, attended by several heads of state and dozens of ministers, marked a jubilant confirmation of his lifelong struggle against the organized crime families in Sicily. In his view Palermo would from now on be known as the capital of the global fight against the mafia instead of as the world’s capital of organized crime. In his book Fighting the Mafia and Renewing Sicilian Culture, Orlando describes how the fight against the mafia requires both the commitment of specialized investigators, prosecutors and judges and of the victimized local community. As mayor, Orlando himself mobilized the local community of Palermo against the local mafia groups of the city.7 To visualize the need of such twinned approach, he invokes the image of a Sicilian Cart with two wheels, one of law enforcement and one of civil society. If one wheel turned without the other the cart would go in circles. The fight against the mafia in Italy relies on the use of specially tailored tools of criminal justice.8 But lasting progress in the fights against entrenched forms of organized crime can only be made when professional and dedicated law enforcement goes hand in hand with political determination and civic commitment. The adoption of the UNTOC in 2000 raised expectations of improved collaboration in global action against transnational organized crimes.9 The Convention laid the legal groundwork for better law enforcement and judicial cooperation against organized crime. It also includes agreements on international cooperation in implementing the Convention. Special articles foresee support for capacity building for specialized law enforcement and prosecutorial agencies in developing countries and countries in transition. States Parties are obliged to provide technical assistance to 6 Williams, P. & Vlassis, D. (eds.) (2001). Combating Transnational Organized Crime: Concepts, activities and responses, London, Frank Cass. 7 Orlando, L. (2001). Fighting the Mafia; and Renewing Sicilian Culture, San Francisco, CA, Encounter Books. 8 Spina, A. La. (2008). ‘Recent Anti-Mafia Strategies: The Italian Experience’, in: D. Siegel & H. Nelen (2008), Organized Crime; Culture, Markets and Policies, Springer. 9 Albrecht, H.-J. & Fijnaut, C. (2003). The Containment of Transnational Organized Crime. Kriminologische Forschungsberichte, Freiburg, Max Planck Institute for Foreign and International Criminal Law.

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developing countries to assist them in meeting their needs for the implementation of the Convention. To this end a special account was to be set up by the UN secretariat, to which regular voluntary contributions should be made, including a percentage of all confiscated assets from criminal groups.10 To set an example and ensure that this provision would not remain a dead letter, the Italian government pledged at the Palermo Conference that it would in the coming years allocate 20% of all assets confiscated from Italian mafia groups to this account. In anticipation of the Convention’s adoption, the Member States had already agreed in the final Declaration of the quintennial UN Congress on Crime Prevention in Vienna earlier in 2000 on concrete targets in their fight against organized crime. According to the Vienna Declaration Member States would cooperate with each other and the UN secretariat to provide a comprehensive global overview of organized crime groups. Following the model of the Millennium Declaration, the Vienna Declaration established 2005 as target year for a significant reduction in the numbers of trafficked persons and smuggled migrants as well as in the illicit manufacturing of and trafficking in illicit firearms. If this was not attained, Member States committed themselves to reassess the measures implemented (A/CONF.187/4/Rev 3). With the adoption of the UNTOC the stage seemed set for a well-funded, targeted and closely monitored global campaign against the main forms of transnational organized crime in the years ahead. Since 2000 large numbers of Member States have indeed ratified the Convention and its three protocols (in 2001 a third supplementary protocol against trafficking in illicit weapons was adopted). Consequently all four instruments have entered into force rapidly. In 2003 this package of new international criminal laws was expanded with the UN Convention against Corruption which also rapidly entered into force. From a legalistic perspective the Big Five legal instruments are a major breakthrough in the development of international criminal law. As foreseen in the UNTOC a Conference of States Parties was convened that oversees its implementation and may suggest possible amendments. This Conference has been convened regularly in Vienna at the headquarters of UNODC. Deliberations at the committee have, however, to this day mainly centered on procedural issues. Several working groups have been set up, such as a permanent one on international cooperation and an interim one on technical assistance. A special working group has been set up to discuss the implementation of the trafficking protocol. Each of these working groups have in turn set up expert groups on specific subtopics. On behalf of working groups and expert groups the secretariat has sent out questionnaires consulting Member States on their needs and best practices. None of these deliberations, however, seems to have resulted in agreement on a strategy to implement the convention, let alone a comprehensive Action Plan or Action Plans concerning selected topics. Somewhat surprisingly, no follow up has been given to the establishment of an account for capacity-building as foreseen, and special donations from Italy

10 Article 30, 2 c of UNTOC reads: “to that end States parties shall endeavour to make adequate and

regular voluntary contributions to an account specifically designated for that purpose in a United Nations funding mechanism.”

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as pledged at the Palermo Signing Conference have never been made. The targets for reducing organized crime, mentioned in the Vienna Declaration, have not been revisited at the subsequent UN Crime Congresses in Bangkok in 2006 or Salvador (Brazil) in 2010. In the Conference of States Parties of the UNTOC the previously agreed-upon targets seem to have been completely forgotten. In 2008 the Conference of State Parties at its fourth session expressed “its concern at the information contained in the report of the Secretariat on the development of tools to gather information from States on the implementation of the Convention and each of its protocols thereto, which showed persisting gaps in the implementation of the Convention and its protocols” (UNODC, CTOC/COP 4 Decisions). Since then more countries have sent in information but such survey, however wellexecuted, falls far short of a serious mechanism to follow up and monitor operational strategies or action plans. Some Western countries including the USA and Sweden, speaking on behalf of the European Union, have recently argued for the adoption of a review mechanism. As a preparatory step they have also agreed to pilot test such mechanism on a voluntary basis in their own countries. There is little room for optimism that their proposal will shortly meet with the approval of the Conference of State Parties. The Salvador Declaration, adopted at the end of the Twelfth United Nations Congress on Crime and Crime Prevention on 12–19 April, 2010 contains ominously weak language on the said initiative.11 It is theoretically possible that implementation on the ground, in spite of a lack of commitment at high political level, has yet been fairly successful. Mention could be made of a flurry of promotional and educational activities against human trafficking including those funded with a special gift of Bahrain (the UN Gift). The global fight against this form of organized crime received a boost from legislation passed by the USA requesting the administration to publish annual ratings of foreign countries on their anti-trafficking efforts (known as the Trafficking in Persons Reports). This legislation mandates the government to impose sanctions on non-complying countries. This action by the USA administration seems to have prompted many countries to ratify the UN Protocol.12 But what about real legislative and operational implementation? The Global Alliance Against Trafficking in Women (GAATW), an umbrella organization of NGOs supporting victims of human trafficking, issued on 13 October 2008 a statement criticizing weak implementation of the anti-trafficking protocol and lack of adequate review mechanisms.13 In a report of UNODC of 2008

11 Article

19 of the Salvador Declaration calls for Member States that have not yet done so to consider ratifying the UNTOC. It then continues as follow: “We also take account of ongoing initiatives aimed at exploring options regarding an appropriate and effective mechanism to assist the Conference of the Parties to the United nations Convention against Transnational Oragnized Crime in the review of the implementation of the Convention” (United Nations, A/CONF.213/L.6/Rev.2). 12 Van Dijk (2007). 13 Statement on a monitoring mechanism for the United Nations Convention against Transnational Organized Crime and each of the protocols thereto with specific attention to the Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Human Trafficking Protocol): “However, the current review process to UNTOC does not provide for a comprehensive review of States Parties

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the conclusion is drawn that from a global perspective the crime of human trafficking remains largely unpunished. Only in a handful of mainly Western countries cases of human trafficking have been systematically investigated and prosecuted.14 These are worrying signals considering that they relate to the type of organized crime that has received by far the most attention from the world community. It seems unlikely that more progress has been made in the fight against other forms of organized crime that are less dramatic in their human consequences. There are few indications that transnational organized crime has been brought under control. In 2010 the UNODC released a report documenting the destabilizing impact of trafficking in cocaine on the Andean region, West Africa and Mesoamerica and of trafficking in heroin on South West and Central Africa, South East Europe and South East Asia (UNODC, 2010) and a more encompassing report on the threat posed by transnational organized crime (UNODC, 2010/2) largely based on open source information.15 Whether progress has been made in reducing human trafficking, smuggling of migrants or other types of organized crime such as drugs trafficking is at any rate impossible to assess with any degree of certainty for lack of a credible monitoring system. As said, no mechanism of independent monitoring has met with the approval of the States Parties, let alone that it was put in place. Neither has any work been done on the scientific global overview of trends in organized crime envisaged in the Convention and as explicitly agreed upon in the Vienna Declaration of 2000. Proposals from the UN secretariat in 2004 to start preparations for a regular World Crime Report, although welcomed at the 2004 Crime Prevention Congress in Bangkok in the final Declaration, were rejected by the Member States at the meeting of the Crime Commission in 2004 as well at later occasions. In the absence of a review system as well as of a monitoring system, there is no way to determine to what extent the UNTOC has been properly implemented and starts to have the desired effects. As said, the entry into force of UNTOC in 2003 created unprecedented opportunities for more cross-border cooperation in criminal justice on a global scale. Since then many meetings have been convened in Vienna and an avalanche of sophisticated manuals, toolkits and model laws has been produced and disseminated by the UN secretariat. And yet the conclusion seems inescapable that the UNTOC has largely remained a dead letter. It is functioning as just another case of soft law

anti-trafficking responses. In fact, it is often used as a means of promoting the “great work” of a country, rather than reviewing how the State is implementing the Protocol and the impact this is having. Furthermore, this process does not provide adequate means for civil society engagement. We believe that the existing information gathering and implementation review mechanisms to UNTOC neither offer a means of highlighting progress on implementation of UNTOC made by States Parties nor provide adequate space for improvement on implementation measures taken”. http://www.gaatw.org. 14 UNODC (2009). Global Report on Trafficking in Persons. 15 UNODC (2010). Crime and Instability; Case studies of transnational threats, UNODC (2010). The Globalization of Crime: A Transnational Organized Crime Threat Assessment.

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codifying international best practices in criminal justice which Member States can use to their discretion rather than as the Treaty with binding obligations for all States Parties that it formally is. It seems therefore unlikely that the first jubilee of the UNTOC in 2010 will be commemorated in a similarly spectacular way as its adoption in Palermo 10 years ago. To paraphrase the famous dictum of the Prince De Ligne at the Vienna Congress in 1814, the diplomats representing their countries in Vienna keep dancing without making any real progress.16 In this article I will reflect on the slow implementation of the UNTOC and explore which political factors prevent Member States from following up the widely applauded UNTOC more diligently. I will try to understand the deeper reasons for the current impasse. The legitimacy of UNTOC implementation has in my view been undermined by its association with agenda’s of national security in the aftermath of 9/11. I will argue that the legitimacy of the fight against transnational organized crime is intrinsically weak because of the lack of a clear and universally persuasive victim narrative. I will subsequently explore avenues for a strategic reorientation of the fight against organized crime. I will argue, in short, that the UNTOC is an international treaty in search of a victim-centred constituency, outside the world of international diplomacy, that can start canvassing for its implementation.

5.2 Organized Crime as Security Threat Organized crime has in many countries including the USA often been framed as a threat to national security emanating from abroad (the so-called alien conspiracy theory). The concept of transnational organized crime was first put prominently on the agenda of the UN by former US president Bill Clinton in his address to the General Assembly of the United Nations in 1995. In this address former President Bill Clinton expressed concern about emerging asymmetries between international crime and the domestically oriented rules and practices of criminal justice. His analysis was subsequently endorsed by major European nations at a meeting of the G8 in Lyon. At this meeting the political foundations were established for the elaboration and subsequent near universal adoption of the United Nations Convention against Transnational Organized Crime and its protocols. From the outset transnational organized crime was seen by the American administration and its allies as

16 “Le

congrès danse beaucoup, mais il ne marche pas”. Prince de Linge on the lack of progress at the Vienna Congress in 1814. In the same vein the Italian Cardinal Pappalardo once castigated the Italian government for its lack of real action against the mafia citing a saying from Roman times: “While S. is burning, Rome keeps talking”. The former Italian magistrate G. Polimeni who used to represent Italy during negotiations of many international treaties on international law both in Europe and at the UN between 1980 and 2000 noticed the creeping dominance of diplomats over criminal justice experts in the deliberations at the Crime Commission and Crime Congresses of the UN, a process which he described as the “diplomatization” of the commission. This process has led to the marginalization of NGOs and individual experts at this forum. Van Dijk, J.J.M. (2010). Message to the Liege Colloque, in: Kellens & Dantinne, Scientific NGOs and Crime Policy, Nijmegen, Wolf Legal Publishers.

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a threat to the sovereignty of the state and the rule of law.17 Global crime was unequivocally construed as a national security concern and not as a mere crime problem. Law enforcement was fused with national security missions, strategies and technologies.18 A leading American scholar on these issues, Louise Shelley, positioned global action against transnational organized crime in the following words: The recently mounted attack on transnational organized crime is, indeed, partly a consequence of the need for security bodies (such as the CIA, KGB and the Mossad) and international organizations (such as the U.N. and the Council of Europe) to develop new missions in the post-cold War era. While the world focused on such highly visible problems as the superpower conflict or regional hostilities, the increasingly pernicious and pervasive transnational crime that now threatens the economic and political stability of many nations was ignored. Long-term neglect of this problem means that the world now faces highly developed criminal organizations that undermine the rule of law, international security and the world economy and which, if they are allowed to continue unimpeded, could threaten the concept of the nation-state.19

After 9/11, American officials have highlighted linkages between organized crime and terrorist groups such as Al Qaeda.20 The fight against transnational organized crime was subsequently subsumed under the broader objective of the war against terrorism. Much attention was focused on the alleged linkages between terrorist groups and the global trade in drugs. In 2002 the Executive Director of UNODC was for the first time invited to brief the Security Council on the crime and drugs situation in Afghanistan. The issues on the agenda of that meeting were linkages between terrorism and the production and trafficking of drugs. Ever since, drugs and crime issues have been regularly discussed in the Security Council as emerging security threats.21 As mentioned above, in 2010 UNODC published a report on trends in organized crime, mainly consisting of an update on the main flows of drugs trafficking. The report was initially titled Crime and Instability; case Studies of Transnational Threats. At a meeting in Vienna in the summer of 2010, coorganized with the World Bank, UNODC staff announced that the report would soon be discussed in a meeting of the Security Council. The phenomenon of transnational

17 R.

Godson (2003). Menace to Society; Political Criminal Cooperation Around the World, Transaction Publishers. 18 P. Andreas & R. Price (2001). ‘From War Fighting to Crime Fighting: Transforming the American National Security State’, International Studies Review, 3 (Autumn), 31–52. 19 Shelley, L. (1995). ‘Transnational Organized Crime: An Imminent Threat to the Nation State’, Journal of International Affairs, 48. 20 Schmid, A. (2004). ‘Links between terrorist and organized crime networks: Emerging patterns and trends’, in: Vlassis, D. (ed.). Trafficking: Networks and logistics of transnational crime and international terrorism. Proceedings of the International Conference on ‘Trafficking: Networks and Logistics of Transnational Crime and International Terrorism’. Courmayeur Mont Blanc, Italy, 6–8 December 2002. 21 On 9 December 2009 the Security Council adopted a Presidential Statement calling for “greater action against drugs trafficking as a threat to international security.” http://www.unodc.org.

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organized crime has over the years been consistently framed by UNODC as a threat to national security.22 Transnational organized crime is now widely understood as a threat to national security rather than as a threat to the lives of ordinary people, individually or collectively. The association of UNTOC implementation with the fight against terrorism and/or political instability seems to have raised the political profile of the UNTOC but, paradoxically, to have weakened political support for its operational implementation. In the international domain as well as domestically, secret intelligence gathering has substituted for the exchange of law enforcement and judicial information. Covert cooperation between security services has taken priority over mutual legal aid with its inbuilt safeguards for the rights of individual citizens. One of the consequences of the response to 9/11 has been diminished interest in government circles in the type of international judicial cooperation, facilitated and promoted by the UNTOC, as well as in building capacity for the administration of criminal justice in developing countries. Also, interest in UN-based comparative, criminological research seems to have waned. Crime statistics have always been politically sensitive but this is even more the case now that they are presented as information on security concerns. Unsurprisingly, proposals for operational strategies, action plans and review mechanisms are met with suspicion at the United Nations if implementing the UNTOC is presented as serving the national security interests of core players. In the reconstruction of Findlay,23 fledgling international criminal justice has been successfully “hijacked” by the USA and its coalition partners to advance the war on terrorism. With respect to the UNTOC, little evidence can be seen of such instrumentalization of international criminal justice. If this would have been the case, UNTOC implementation would have attracted more political attention and funding. Rather, concerns about global terrorism seem to have overshadowed the UNTOC project and to have radically lowered the priority of its implementation. The marginalization of the UNTOC is an unintended side-effect of the radical reordering of political agendas in the aftermath of 9/11. The fight against transnational organized crime, an overriding international priority in 2000, has since then been sidelined by the war on terrorism. The fusion between the “low politics of law enforcement” with the “high politics of national security” may have raised the temporary interest and support of powerful bodies such as the Security Council. But this upgrading has reinforced the image of organized crime as a threat to national

22 The

report concludes that the UN conventions against drugs, organized crime and corruption have failed to address the national security implications of transnational crime: “Too often, work under the Conventions has been limited to law enforcement, while transnational organized crime cannot be reduced to a criminal justice issue. The Conventions provide a bedrock, but they do not constitute a global strategy, and they do not frame drug trafficking as a matter of international security.” The report ends with a plea for comprehensive global action against organized crime “making use of the full range of military, development and crime prevention tools available” (UNODC, 2010, Crime and Instability, Vienna, February, 2010). 23 Findlay, M. (2008). Governing through Globalized Crime, Futures for International Criminal Justice, Cullompton, Devon, Willan Publishing.

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security rather than to the interests of real victim communities and this has reduced the political standing of the UNTOC. Invitations to meetings of the Security Council for UNODC staff have come at the considerable cost of reducing the legitimacy of UNTOC implementation in the long term.

5.3 Organized Crime and the Lack of Victim-Based Legitimacy The question must be addressed why the international law enforcement community, the primary stakeholder of the UNTOC, has been unwilling or unable to resist the subsumption of the fight against transnational organized crime under the war on terrorism. In my view, an important explanation is that the investigation and prosecution of transnational organized crime suffers more than that of common crimes such as homicides or rapes from reduced legitimacy. The project of UNTOC implementation could probably be so easily derailed because it suffered from a legitimacy deficit from the outset. In his seminal studies critical criminologist Schur (1965) raised doubts about the legitimacy of laws criminalizing “crimes without victims.”24 Such “victimless crimes” are defined by him as crimes without evident individual victims, such as abortion, homosexuality, drugs addiction and prostitution. Schur’s analysis of the problematic stature of “victimless crimes” seems even more valid now than it was at the time of writing. In modern, secularized nations awareness of the suffering of victims has become the principal justification of interventions by criminal justice.25 This trend towards victim-centeredness has been dubbed the “victimilization” of criminal law. It is often, rightly or wrongly, critiqued for having fuelled penal populism and new punitiveness.26 Another, less obvious implication of the victim focus of criminal policies would seem that it has further reduced the legitimacy of criminalizing and prosecuting victimless crimes. In a secular, post-modern culture a victim focus legitimizes the use of power by criminal justice institutions. Without such focus, its legitimacy can easily be put into question.27

24 Schur,

E.M. (1965). Crimes without Victims, Prentice Hall.

25 Boutellier, H. (1999). Crime and Morality; The Significance of Criminal Justice in Post-Modern

Culture, Dordrecht, Kluwer Academis Publishers; Garland, D. (2001). The Culture of Control, Crime and Social Order in Contemporary Society, Oxford, Oxford University Press. 26 Buruma, Y. (1994). ‘The Victimalization of Criminal Law’, In: How Punitive is The Netherlands? Arnhem: Gouda Quint (in Dutch) (Dutch title: De victimalisering van het Strafrecht). 27 Victim-based legitimacy implies that criminal justice will be more strongly supported if it is perceived to be at least partly directed at serving the interests of actual and potential victims (victim communities). It follows from this notion that criminal justice can enhance its public standing by directly serving tangible victim interests such as respect, information, compensation and voice in criminal proceedings (Reemtsma, J. Ph. 1998). In the Cellar, Hamburg, Rowolt TaschenbuchVerlag (in German) (German title: Im Keller); Prittwitz, C. (1999). The Resurrection of the Victim in Penal Theory. Buffalo Criminal Law Review, 3, 109–129; Dijk, J.J.M. van (2009). Free the Victim; a Critique of the Western Conception of Victimhood, International Review of Victimology. 2009, 16, 1–33).

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Schur’s own opposition against the criminalization of victimless crimes was not based solely on moral consideration. An important point of his analyses is that if no interests of individual victims are at stake, few citizens will come forward to assist law enforcement agencies as victim-witnesses or complaining bystanders. This lack of victim-witness support makes the investigation and prosecution of such crimes difficult. Packer (1968) characterized victimless crimes as: “crimes that do not result in anyone feeling they have been unjustly treated in such a way that they feel called upon to bring the crime to the attention of the authorities.”28 This lack of civil support forces investigators to apply expensive, special techniques to actively collect evidence themselves. They are forced to tap phones, use informants, employ undercover activities or use sophisticated electronic bugging devices. The reliance on covert techniques of detection creates, according to Schur, a risk of infringements on civil liberties and of bribetaking or extortion. Such official misconduct undermines the respect for state institutions. Schur’s analysis leads him to the conclusion that the legitimacy of laws against victimless crimes is relatively weak and that their enforcement can easily compromise involved state institutions. Although Schur’s notion of victimless crimes was not applied by him or other authors to organized crime in its current transnational manifestations, his analyses seem to hold a lesson for the global fight against transnational organized crime. First, it can make us aware that investigations of organized crime often suffer from the same lack of support from complaining victims as the consensual crimes examined by Schur. Investigations against organized crime groups are rarely triggered or sustained by voluntary complaints from ordinary citizens who have been directly victimized. Some forms of organized crime such as illegal gambling can indeed be regarded as relatively victimless. Other forms, such as extortion, victimize citizens but these will often refrain from issuing complaints for fear of retaliation. Investigations into organized crime are for that reason almost always largely based on the use of special investigative techniques. Not coincidentally the UNTOC specifically obliges States Parties to introduce a wide range of such techniques in their legal systems such as controlled delivery, electronic surveillance and undercover operations.29 For this reason many of Schur’s observations of the possible risks involved in investigating victimless crimes apply seamlessly to anti-mafia investigations. The legitimacy of such investigations can easily be compromised by the overzealous use of special techniques or corruption. Many countries have over the past two decades been plagued by scandals about derailments of anti-mafia units undermining support for such activities. Many examples can be given of alleged or real abuses by anti-mafia units across the world.30 In Belgium the use of undercover

28 Packer, Herbert L (1968). The Limits of the Criminal Sanction, Stanford, CA, Stanford University

Press. 29 UNTOC,

Article 20 Special Investigative Techniques. C.J.C.F. & G.T Marx (eds.) (1995). Undercover, Police Surveillance in Comparative Perspective, The Hague, Kluwer. 30 Fijnaut,

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agents became controversial after it led to a corruption case.31 In the Netherlands large-scale operations against organized crime led to a Parliamentary Enquiry on the use of informants/undercover operations which led to the resignation of several prosecutors and the ministers of justice and the interior in 1995.32 Although investigations into mafia groups continued, the impetus in the fight against organized crime in the Netherlands was lost for many years. Crucially important in this regard seems Schur’s observation that derailments are especially damaging for the legitimacy of investigations of crimes without complaining victims. In other words, investigations into victimless crimes are hindered by the lack of complaining victims in two ways. First, the absence of complainants forces the police to use intrusive techniques of investigation. Secondly, the use of such intrusive techniques cannot be justified to the public with reference to the need to protect vulnerable and innocent victim communities. This double bind makes protagonists of anti-mafia campaigns vulnerable to innuendo about their true motives. The intrinsic vulnerability of anti-mafia campaigns can be illustrated by the notorious Scáscia incident in 1987 in Italy. At the height of the preparation of the maxi-trials against the mafia the highly acclaimed Sicilian novelist Leonardo Sciascia criticized in Il Corriere della Serra the emergence of what he named the “anti-mafia professionals” (public officials and politicians making a career out of fighting the mafia).33 Although his motives have never been fully revealed, his criticism seems to have been motivated by a feeling of unease about the ulterior motives of the main actors. Were they really committed to fight serious offenders or were they looking for personal glory? In other words, he expressed doubts on the legitimacy of the high profile fight against the mafia in Italy. As said, Schur’s analysis of the dubious legitimacy of investigating victimless crimes seems relevant for a study of the stagnant implementation of the UNTOC. In many cases of transnational organized crime such as drugs trafficking opinions of who are the victims can differ. From the perspective of production countries those living under the terror of organized groups can be seen as victims. In destination countries many will see drug addicts as primary victims. The visibility of the victims of organized crimes is often diminished by its transnational nature. This is for example clearly the case with money-laundering operations in Western countries. Public opinion is hard pressed to understand that actions against banks facilitating money-laundering by criminal groups operating abroad serve concrete interests of victim communities in these countries (Global Witness, 2009).34 The mistaken notion that organized crime is “victimless” is reinforced by the fact that in major 31 Fijnaut,

C.J.C.F. (1983). De Zaak Francois, Antwerpen, Kluwer. C.J.C.F. (1996). ‘Over de opzet, de uitvoering en de resultaten van het onderzoek’, In: F. Bovenkerk (Ed.), De georganiseerde criminaliteit in Nederland: Het criminologisch onderzoek voor de parlementaire enquêtecommissie opsporingsmethoden in discussie, Deventer, Gouda Quint, pp. 17–24. See also C. Fijnaut, F. Bovenkerk, G. Brvinsma and H. van de Bunt, Organized crime in The Netherlands, The Hague: Kluver Law International, 1998. 33 Described in Orlando, op. cit. 34 Global Witness (2009). Undue Diligence; How banks do business with corrupt regimes. 32 Fijnaut,

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anti-mafia investigations and trials victims play hardly any role. Investigations and prosecutions rely on evidence gathered through special techniques and from former gang members turned into witnesses for the prosecution (pentiti). An exception to the image of organized crime as victimless is constituted by the crime of trafficking in women for sexual exploitation. Policies against trafficking seem to be firmly grounded in a narrative around the moral need to protect the vulnerable victim community of women and children. The UN protocol against human trafficking, unlike the parent convention, mentions as one of its overarching objectives, besides preventing and combating trafficking “to protect and assist the victims of such trafficking.” The article on victims lists a range of services that States Parties should make available to victims and an even longer list of services that they should consider making available (e.g. residence permits). But are these policies really geared towards the interests of victims and are they perceived as such by the victim communities themselves? In spite of the victim-centeredness of anti-trafficking policies, experiences with the investigation of trafficking cases have revealed that victims themselves often remain suspicious about what the institutions can do for them. Although American strategists have framed investigations into trafficking rings as “rescue operations’’ and routinely speak about the “escape” of trafficked women, the sex workers involved seem often reluctant to cooperate with investigators. And, perhaps more tellingly, they often allow themselves to be trafficked again soon after their “rescue.” As a result of these ambiguous attitudes among victims, trafficking investigations often face many of the problems identified by Schur. Despite formal commitments of governments, the numbers of convicted traffickers have remained small. The gap between objectives set by governments and actual results on the ground is notably huge in the USA, where fewer cases have been brought to the courts than in several individual European countries, with much smaller populations (including Italy and Belgium). In official documents the standard explanation given for these lackluster results is the reluctance of victims to cooperate as witnesses. The victims’ reluctance to cooperate with investigations and prosecutions can partly be ascribed to fear of retaliation from the traffickers. The problem, however, seems to be more fundamental. Studies among trafficked persons suggest that many victims are doubtful of the payoffs of criminal interventions for themselves. The lack of victim testimonies forces those carrying out investigations into human trafficking to rely to an increasing extent on special techniques including the use of informants and financial investigations. And, as predicted by Schur, many specialized law-enforcement agencies have experienced derailments of individual investigators which have damaged the legitimacy of their operations.35 In not a few cases, negative publicity on alleged or actual abusive activities of antitrafficking units have undermined the political will to tackle local organized crime or to make sufficient funds available. The lack of cooperating complainants renders anti-mafia policies vulnerable to accusations of official misconduct and/or the pursuit of ulterior bureaucratic or political agendas.

35 Zhang, S.X. (2007). Smuggling and trafficking in human beings: all roads lead to America, Praeger Publishers.

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In our view, an examination of the anti-mafia strategies of the United Nations in the light of Schur’s concept of victimless crimes suggests the need of critical reflection on the framing of these activities. I will in the next section of this article argue that to enhance its legitimacy the global fight against organized crime should become and seen to become more victim-centered. A first step towards this goal is a fully fledged research effort to illuminate the hidden human and economic costs of organized crime. In the next section I will try to demonstrate the types of victimological studies needed to that end. In the final section of this article I will come back to the need of a strategic reorientation for the UNTOC. The legitimacy of the fight against transnational organized crime cannot be restored by studies on the human impact of organized crime alone. To become more successful, institutions tackling mafias need to harness the potential support of civil society both at the local, national and, most challengingly, global level in the common fight against the mafias of the world. In this final section I will discuss best practices of victim empowerment in criminal cases against mafia groups as well as newly emerging initiatives towards the involvement of collective and individual victims of organized crime in anti-mafia policies in the European Union. Finally, I will discuss how these best practices and fledgling initiatives could be transferred to the global level within the framework of UNTOC implementation.

5.4 Organized Crime and Its Direct and Indirect Victims Sellin and Wolfgang (1964) designed a typology of victims distinguishing between primary victims, secondary victims and tertiary victims.36 This typology is often presented in textbooks on victimology.37 According to this typology primary victims have been directly victimized by criminal acts. In the case of organized crime this would include victims of mob-related homicides and trafficked women. Secondary victims are legal entities such as business corporations or public institutions economically victimized by crime. Tertiary victims are classified people, belonging to communities whose interests are directly or indirectly harmed by crime. The typology seems to classify victims both on the basis of the length of the causal chain of victimization and the nature of the affected entities (natural persons or legal entities). In our opinion, a clearer typology would distinguish primarily on the basis of the length of the causal chain. According to this logic primary victims are directly harmed by the crime. They can be sub-divided into natural persons and legal persons. Secondary victims are family members and other intimates of primary victims. This is an important category because in many countries such secondary victims are assigned procedural rights in criminal trials and made eligible for awards by State Compensation Funds for Victims of Violent Crime, including

36 Sellin,

T. & M. Wolfgang (1964). The Measurement of Delinquency, New York, NY, Wiley. also Letschert, R.M., Staiger, I. & Pemberton, A. (2010) Victims of Terrorism, Towards a European Standard of Justice, Springer Press, Chapter 1.

37 See

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from the Italian Fund for Victims of Organized Crime and Terrorism. Tertiary victims in our view are persons or entities that are indirectly harmed by the crime. They could alternatively be described as indirect victims. In many cases the indirect victimization will be collective in nature. The victimization of collectives such as a local community has been recognized in the framework of the International Criminal Court (see also Chapter 12) but has not yet been a subject of many victimological studies. In this section I will first discuss the direct victims of organized crime. Both existing victimological studies and the literature on organized crime have given insufficient attention to tertiary victimization by organized crime. As will be argued below, the neglect of organized crimes’ tertiary or indirect victims invites the mistaken view of organized crime as threat to national rather than to human security. I will therefore elaborate at the end of this section on the indirect victims of organized crime. A review of current knowledge on organized crime provides ample evidence that organized crime activities are directly damaging citizens and communities in many parts of the world. Different from organized crime groups in the sixties and seventies of the last century, current organized crime seems to have become relatively more violence-intensive, especially in South America, Central America, Eastern Europe and Western Africa (UNODC, 2010). As observed by Mexican expert GonzalezRuiz: “Organized crime almost always generates violence because it has no way of resolving disputes except by mutual consent or settling of scores.”38 In countries as different as the USA, Colombia, Mexico and Italy upsurges in organized crime activity go together with upward trends in overall homicide rates.39 In Kosovo, homicide rates plummeted after the reconstruction of the justice and security sector by the United Nations, including focused police action against the local mafia. In Serbia homicide rates went down after the disruption of the local organized crime groups after the assassination of the prime minister in 2002.40 Elsewhere rampant organized crime has manifested itself in surges of mob-related violence. Since 2007 over 14,000 citizens lost their lives in Mexico in the ongoing drugs wars. In the Brazilian capital Rio alone, about 25 people were recently killed on a single day by drugs gangs (October 17th 2009).41 Murder rates have also exploded to unprecedented levels in Honduras, El Salvador and Guatamala (UNODC, 2010). Besides drugs, trafficking for exploitation in sex industries is one

38 Gonzalez-Ruiz,

S. (2001). ‘Fighting Drug Cartels on the Mexico-United States Border’. Forum on Crime and Society, 1, 19–31. 39 Rubio, M. (2001). ‘Homicide, Kidnapping, and Armed Conflict in Colombia’. Forum on Crime and Society, 1, 55–69. See also Orlando. 40 Dulic, D. (Ed.) (2005). Human security indicators in Serbia. Philo, Belgrad (in Serbian with an English summary). 41 Although the casualties of drugs wars could be construed as side-effects of criminalization, the concept of victimless crimes seems not applicable in countries where organized crime groups have entrenched positions. In such situations the repeal of anti-narcotic laws is likely to trigger diversification of the criminal activities of organized crime groups to other illicit markets.

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of the largest global criminal markets. Estimates of trafficked women and children are in the range of 2–4 million per year. Many of those trafficked persons are subjected to various forms of violence and or fraud both during their recruitment and during their exploitation at the place of destination.42

5.4.1 Indirect Victims It is generally understood that organized crime invariably goes together with the corruption of relevant public officials including high-ranking police officers, judges and politicians. “Buying” protection from the state is a necessary condition for the sustained growth of organized crime activities. In many countries organized crime groups enter into alliances with public officials and politicians to plunder public resources. The highest level of infiltration encompasses the capture of the state’s policies by criminal groups who are then able to unduly influence law-making, policy setting and crucial (appeal court) judicial decisions. The symbiosis between organized crime groups and corrupt public officials has been documented in case studies in many different countries. In Italian legislation infiltration of the licit economy, the state and the electorate process have been incorporated as defining traits of organized crime.43 In Europe systematic collusion between organized crime and political elites has been well-documented in several Eastern European countries, most notably Bulgaria.44 In an edited volume, Roy Godson (2003), assembled case histories of what he names Political-Criminal Nexuses.45 Analyses are presented of collaboration between organized crime and political elites in Colombia, Mexico, Russia, the USA, Nigeria and Taiwan. In his view these nexuses constitute a menace to society by undermining key administrative functions and the rule of law. In analyses of the World Bank Institute “state capture”– defined as undue influence on laws, policies, and regulation by special interest groups – has been found to be correlated to current and future economic performance.46 In an important elaboration of these notions, Kaufmann and Kraay

42 Aronoff,

A. (2008). Human Trafficking, Human Misery, The Global Trade in Human Beings Westport: Praeger. 43 Jamieson, A. (2000). The Antimafia, Italy’s fight against organized crime, Great Britain, MacMillan Press. 44 Roth, J. (2005). The New Bulgarian Demons, Sluntse. 45 Godson (2003), op. cit. 46 In “comparative economics” it is now generally acknowledged that sound legal infrastructures, especially those governing ‘property rights’, are a primary determinant of economic performance. See Knack, S. & Keefer, P. (1995). ‘Institutions and economic performance: cross-country tests using alternative institutional measures’, Economics and Politics, 7, 207– 227; Kaufmann, D., Kraay, A. & Mastruzzi, M. (2004). Governance Matters III: Governance Indicators for 1996–2002, Policy Research Working Paper 3106, Washington, DC, World Bank: http://www.worldbank.org/wbi/governance/pubs/govmatters3.html Feld, L. P. & Voigt, S. (2003). ‘Economic growth and judicial independence: Cross country evidence using a new set of indicators’, European Journal of Political Economy, 19, 497–527.

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have attributed the negative influence of high-level corruption on development to the intermediary factor of “cronyism,” the widespread interference of special interest groups in rational decision-making in the economic domain.47 Infiltration in the legitimate economy and political process is, as discussed, a defining characteristic of mafia-type organizations. If such “crony capitalism” is indeed the main impediment of economic development, organized crime, as an especially entrenched type of cronyism, may well be at the heart of the governance-related economic problems of many countries. The Sicilian economy, for example, seems to have been seriously hampered by the reign of the mafia and started to prosper only after the local mafia bosses were put on the defensive through the maxi-trials and community mobilization.48 The experience with racketeering in New York, USA also points to economic revitalization after the defeat of mob-related racketeering in several sectors of the local economy.49 Analyses of the interrelationships between organized crime, institutional failure and economic growth cannot be solely based on case studies. A systematic assessment of the economic impact of organized crime requires the construction of a statistical measure of organized crime. Some preliminary work on the construction of a composite index of organized crime has been conducted.50 As one of our measures of organized crime, I have used the results of the annual business executives’ surveys commissioned by the World Economic Forum on the perceived costs of organized crime to businesses. An index was also constructed to measure the extent of high-level corruption using existing survey research findings collated by the World Bank Institute.51 The index of organized crime perception was very strongly correlated to the index of high-level corruption (r=0.82; n=67, p

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Globalization And Human Rights (The New Global Society)

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