Blog post by Saskia Wishart & Gillian Kane. [1]
On 26th February 2021, the United Kingdom Supreme Court (UKSC) handed down its much-anticipated decision in Begum v Secretary of State for the Home Department. Shamima Begum had left the UK for Syria in 2015 and married a Dutch member of the so-called Islamic State (ISIL), with whom she had three children. Begum was eventually found in a refugee camp in Syria. Shortly afterwards, former British Home Secretary Sajid Javid, acting pursuant to the British Nationality Act 1981 deprived Begum of her British nationality, despite having been born and raised in England. In this complex case, one of the primary issues before the Supreme Court centred on the question of whether Begum could return to the UK to challenge the decision to remove her British citizenship. In short, the answer to that question, according to the unanimous judgment of the Court, was no. Of note is the determination on situations ‘when an individual’s right to have a fair hearing of an appeal came into conflict with the requirements of national security’. The Supreme Court rejected the Court of Appeal’s determination that, in such a case, Begum’s ‘right to a fair hearing must prevail’. Instead, it was asserted that, ‘if a vital public interest – in this case, the safety of the public – makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it’.
While the public law questions which lie at the heart of the appeal before the Supreme Court have evoked much commentary, on the periphery there has been a comparatively small discussion on whether Shamima Begum is, in fact, a victim of trafficking (for example: here, here, and here). Following the UKSC’s decision in February 2021, this discussion was renewed once again. Fionnoula Ní Aoláin, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, observed that, ‘when other children do what Ms Begum did, we call them victims of trafficking and grooming online’. Indeed, in 2019, Begum’s lawyer reportedly alleged that she had been ‘trafficked internationally’.
If it is the case that Shamima Begum is indeed a trafficked person, why has she not been identified as such and adequately protected, as the UK is required to do under international law? By first considering what, precisely, amounts to trafficking under international law, this article argues that Shamima Begum’s situation certainly contains indicators that she has been trafficked. This raises the question of why, precisely Shamim Begum was not identified as at least a possible victim of child trafficking. Thus, this article offers a possible explanation for such an oversight, namely, the continued dominance of the ‘ideal victim’ narrative which appears to permeate anti-trafficking policy and practice. Finally, the focus turns to just what is at stake for trafficked persons if they are not identified as such. The argument advanced in this article is that Begum’s case demonstrates that there is more work to be done to disrupt dominant narratives regarding human trafficking. Only a holistic understanding will ensure that the international anti-trafficking framework’s potential effectiveness is realised.
Who is a Trafficked Person?
The term ‘human trafficking’ is frequently utilised as part of the discourse on exploitation, but what precisely falls within the scope of the term? Under international law, human trafficking is defined in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime (Palermo Protocol) as:
(a)…the recruitment, transportation, transfer, harbouring 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;’
Thus, it is commonly accepted that for conduct to amount to trafficking, three elements must be present. These are: an act, a means, and a purpose. Notably, the list of exploitative purposes in the Palermo Protocol is not an exhaustive one. Thus, the key is ‘exploitation’. While the act-means-purpose approach is the centre of gravity of the trafficking definition, Article 3 continues by making an important clarification regarding the standard applied to possible instances of child trafficking:
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age.
For those under 18, then, conduct amounts to trafficking where only the act and purpose elements are present. While coercive means are often observed in instances of child trafficking, this element is not required.
In light of the above definition, it seems apparent that, at the very least, the possibility of trafficking in the case at hand is beyond question. With regards to the ‘act’ element, arguably Shamima Begum was recruited to ISIL and there are certainly indicators that her recruitment may have been for the purpose of exploitation. Recall that exploitation includes ‘forms of sexual exploitation’ and arguably, in some circumstances, could include child marriage. Indeed, Begum was under 18 at the time of her recruitment and could not legally consent to marriage. Additionally, such marriages can turn into domestic servitude and/or sexual slavery, further indicators of trafficking in persons.
Moreover, it has previously been documented that ISIL recruiters used deception and abuse of a position of vulnerability when recruiting. For women and girls, these vulnerabilities included previous trauma, poverty, discrimination, and family conflict. They used known emotional abuse tactics such as ‘love bombing’, recruitment through romantic relationships, women recruiters who glamorised life in ISIL and propaganda promising honour and the chance to live a truly Islamic life. Given what is known about online radicalisation of young people in the context of ISIL, it is reasonably likely that coercive means could be established, although, since Shamima Begum was a child at the time of her recruitment, this element need not be satisfied for her to be recognised as a trafficked person.
Notably, in the Court of Appeal’s judgment, the defence counsel’s assertion that ‘there were no findings or suggestions in the media interviews that Ms Begum had been trafficked or groomed and radicalised’ is striking. This assertion is certainly contestable, given what has been outlined above.
At the very least, it is clear, based on the elements found in the trafficking definition, that there ought to have been a meaningful assessment as to whether Begum had, in fact, been trafficked. Indeed, criticism has been levelled against the UK Home Office for failing to carry out such an assessment. It might be argued that such an apparent oversight is surprising, given that in recent years numerous steps have been taken in UK law, policy, and practice to actively address trafficking. Nevertheless, an assessment of the dominant narratives which continue to permeate the trafficking discourse might indicate that the failure to view Shamima Begum as at least a potential victim of trafficking, may have been entirely predictable.
The Persistence of the ‘Ideal Victim’ Narrative
Trafficking in persons, particularly sex trafficking, has long been plagued by a dominant narrative that relies on an ‘ideal victim’ – an innocent young woman deceived into sexual exploitation and held there through some form of force or coercion. This narrative includes teenage girls who are groomed online by promises of love, opportunities, or a better life, only to find themselves trapped in a brutal reality and subjected to sexual exploitation.
As a 15-year-old girl likely groomed online, only to find herself in an arguably exploitative relationship – a child marriage she could not legally consent to – Shamima Begum’s case actually fits a classic human trafficking narrative. This reality raises several important questions for legal scholars and those working to combat human trafficking: Why is it that Shamima Begum has, in general, not been viewed as a potential victim of human trafficking, entitled to certain rights and protections under international law? Is it simply because she was groomed and recruited by ISIL, a terrorist organisation, rather than an organised crime syndicate involved in sexual exploitation?
Is it because she is not seen as innocent or child-like enough to constitute a victim? Does her race or religion make her less likely to receive sympathy? Or was it the reaction she had during her initial media interviews – also noted in the Supreme Court decision – where she did not express enough emotion or regret (the link has previously been made between trauma responses and the underidentification of some trafficking victims)? What weight do these factors have, given the definition outlined above, in identifying potentially trafficked persons? And more importantly, how do all these factors impact future identification and assessments of possible trafficked persons?
Despite advocacy and research efforts highlighting the negative effects of the women and girls who do not fit the ‘ideal victim’ stereotype, and efforts to expand the understanding of victims and perpetrators, the dominant narrative still demands that victims look and act a certain way in order to ‘qualify’ as a real victim. This erasing of the many nuances around the lived realities of victims of human trafficking has caused significant harm for those who are not perceived to fit the narrative. Not only does it mean that many forms of trafficking go unseen, but in the case of Shamima Begum, the consequences have been dire.
What is at Stake?
Given the concerns highlighted above, a further question arises: why does any of this matter? In other words, what is at stake in situations where trafficked persons have not been identified as such? International law obliges States not only to prevent trafficking, but also to take a number of key measures in situations where trafficking has occurred. In addition to requirements to prosecute trafficking, States have obligations to protect, provide assistance to, and support the rehabilitation of trafficking victims. Further, within the international anti-trafficking framework, a non-punishment principle has emerged, meaning that in many cases, trafficked persons should not be punished for conduct connected to their trafficking experience.
In a situation such as Shamima Begum’s, it has been observed that, where an individual has arguably been trafficked out of the UK, the pertinent obligation is contained in Article 8(1) of the Palermo Protocol, which states that:
The State Party of which a victim of trafficking in persons is a national or in which the person had the right of permanent residence at the time of entry into the territory of the receiving State Party shall facilitate and accept, with due regard for the safety of that person, the return of that person without undue or unreasonable delay.
This same obligation also exists in Article 16(1) of the Council of Europe Convention against Trafficking in Human Beings. In practice, this means that, if Shamima Begum has indeed been trafficked, then, given that she was a British national ‘at the time of entry into the territory of the receiving State Party’, the UK has an obligation to ‘facilitate and accept’ her return ‘without undue or unreasonable delay’. What has occurred in practice, sits in stark contrast to what is envisioned by the Palermo Protocol. Instead of being repatriated and assisted in her recovery, Begum has been stripped of her nationality and remains in an extremely precarious situation, arguably at risk of re-trafficking.
In addition, it ought to be acknowledged that the international anti-trafficking framework requires States to take measures to provide assistance to trafficked persons. The Palermo Protocol requires States to at least consider ‘implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons’. Further, States are obliged to take measures to prevent trafficking and re-trafficking.
Significantly, just ten days before the Supreme Court’s decision in the Begum case, the European Court of Human Rights (ECtHR) handed down its judgment in V.C.L. & A.N. v The United Kingdom. This case concerned two Vietnamese young people who were trafficked for the purposes of forced labour, and subsequently prosecuted. The case before the ECtHR concerned obligations under Articles 4 and 6 ECHR in relation to human trafficking, and the judgment contains significant statements on the scope of both of these Articles in connection to the protection owed to trafficked persons. Of note is the ECtHR’s determination that, ‘Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking’. This reaffirms the the picture which emerges from an assessment of the anti-trafficking framework which is one where trafficked persons ought to be protected and assisted in their recovery.
Another key protection for trafficked persons lies in the ‘non-punishment principle’, which has emerged in recognition of the fact that ‘trafficking in persons could be aimed at the exploitation of the victims’ involvement in unlawful activities but also that victims might incidentally commit unlawful acts in the context of their status as trafficking victims’. The principle has subsequently been codified in the Council of Europe Convention on Action Against Trafficking in Persons, and exists as a statutory defence in Section 45 of the Modern Slavery Act 2015. In addition, in the above mentioned case, V.C.L & A.N. v The United Kingdom, the ECtHR found that while trafficked persons are not immune from prosecution, the prosecution of a potential victim of trafficking may contradict States’ obligations to take operational measures under Article 4 ECHR to protect trafficked persons. Once authorities become aware of a potentially trafficked person, the person should be properly assessed, and particularly in cases of minors, a decision to prosecute should follow the assessment and be made based on clear reasoning.
The extensive range of protections outlined above shows just what is at stake where trafficked persons are not identified as such. Without the benefit of such protections, exploitation, risk, and trauma may persist and even worsen. Further, non-identified trafficked persons may be held liable for acts which formed part of their trafficking experience, in a context where they ought to be protected rather than punished. Indeed, in V.C.L. & A.N. v The United Kingdom, the ECtHR powerfully captured the problem, observing that, ‘[i]t is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to be re-trafficked in future.’
Conclusion
This blog has demonstrated that the situation of Shamima Begum contains significant indicators of child trafficking that should be subject to a proper assessment. It argues that one of the reasons the public discussion on this case has not focused on trafficking is the continued dominance of the ‘ideal victim’ narrative within anti-trafficking discourses. This narrative is harmful because it can erase the nuances present in most cases of human trafficking and may lead to victims going unrecognised and unassisted. Non-recognition of potential victims of trafficking in persons can have serious consequences, as demonstrated in the case of Shamima Begum. The State has several obligations towards potential victims of human trafficking, which at the very least requires a full and proper assessment, one which would be difficult to do in Shamim Begum’s case given her current living situation.
Many of the arguments surrounding the response to Shamima Begum centre around the threat to national security. In light of the lack of publicly available evidence on Shamima Begum’s actual activities while in ISIL, it is difficult to ascertain on what grounds the UK has determined her to be a threat to public safety. Additionally, it is unclear to what extent, if any, national security concerns take precedence over anti-trafficking obligations and how this may differ in the case of a minor. In this regard, though, it is worth acknowledging that Article 4(1) ECHR, which encompasses human trafficking, is absolute in nature, with no derogation permitted, even in times of emergency. However, the discussion has value, not only for cases involving children recruited into terrorist organisations but also for evolving work around responding to child soldiers used in conflict settings. These are complex discussions that require much more nuance than the dominant narrative around child trafficking currently allows.
The agency of (child) trafficking victims, and accountability in cases involving unlawful acts, remain important discussion points beyond the scope of this article. However, if the UK were to conduct a full and proper assessment of Shamima Begum as a possible victim of child trafficking and fulfil their state obligations to her in this regard, it would actually shed more light on what response is appropriate to her case, and what, if any, accountability is required. It would also help to disrupt the dominant narrative around trafficking in persons, which can only serve to further the identification of, and response to, victims of child trafficking.
Author Bios
Saskia Wishart works as a research and development consultant in the field of migration and human trafficking. She holds an LLM in Criminal Law, and Criminal Justice and an LLB in International and European Law. Twitter: @saskiacw
Gillian Kane is a PhD candidate in the School of Law at Queen’s University, Belfast, and an RLI Research Affiliate. She holds an LLB in International and European Law, and an LLM in Human Rights Law. Her PhD research investigates the role of international law in preventing and tackling human trafficking among refugees and asylum seekers. Twitter: @gilliankane87
[1] The authors wish to thank Maja Grundler (PhD Researcher at QMUL, for her comments on an earlier draft of this article).
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