The trafficking in persons report by UCLA Luskin School of Public Affairs

THE TRAFFICKING IN PERSONS REPORT: STRENGTHENING A DIPLOMATIC TOOL

Prepared for Vital Voices Global Partnership

Amy G. Friedrich Anna N. Meyer Deborah G. Perlman UCLA School of Public Affairs May 8, 2006

TABLE OF CONTENTS Acknowledgements……………………………………………………………………………….i Foreword………………………………………………………….……………….……………...ii Executive Summary……………………………………………………………………………..iii Introduction………………………………………………………………………………………1 The Incidence and Definition of Human Trafficking…………………………………………..3 Background: The Trafficking in Persons Report………………………………………………..5 The Trafficking Victims Protection Act……………………………………………………5 Preparing the TIP Report………………………………………………………………..……7 Other State Department Assessment Tools…………………………………………...……9 Analysis: Criticisms that Undermine the Impact of the TIP Report…………………………10 Scope of Analysis: Country Assessments and Tier Determinations……………….……..10 Congressional Intent: A Diplomatic Tool to Encourage Anti-Trafficking Efforts……….11 In Practice: The TIP Report’s Unmeasured Impact………….………………….…….….12 Room for Improvement: A List of Criticisms………….………………….………….…..13 - Problem #1: Perception of Bias………….………………….………………….....14 - Problem #2: Quality of Information………….…………………………..……….18 Recommendations: Strengthening the TIP Report………….………………….……….…....20 Reducing the Perception of Bias in Country Assessments and Tier Determinations.........20 Improving the Quality of Information in the Country Assessments……………….……..23 Conclusion……………………………………………………………………………………….26 Appendix A: Methodology………….………………….………….…………………………....27 Appendix B: Minimum Standards and Criteria.………………….…………………….……30 Appendix C: Tier Determinations in the 2005 TIP Report………………….…………….…33 Appendix D: The State Department’s NGO Questionnaire Sample……….…………..……35 Appendix E: Country Assessment (Venezuela)……………………………………….……...39 Appendix F: The Case of Venezuela…………………………………………….…….……….41 References……………………………………………………………………………………….43

ACKNOWLEDGEMENTS This project represents the culmination of months of interviews and support from many busy people and organizations. Our sincere thanks go to Wenchi Yu Perkins, Director of the AntiTrafficking and Human Rights Program at Vital Voices Global Partnership, for her support and diligence, even on weekends. We also could not have completed this project without valuable insights and comments from several government officials and staff, as well as human trafficking and legal experts. We thank those who provided us with their expertise and time, especially Gannon Sims at the State Department Office to Monitor and Combat Trafficking in Persons and Professor Janie Chuang at American Universityâ&#x20AC;&#x2122;s George Washington School of Law. In addition, we thank Dr. Barbara Nelson, Dean of the UCLA School of Public Affairs, for funding our project generously. The grant allowed us to travel to meet human trafficking experts and anti-trafficking practitioners who added valuable perspectives to our work. Thanks to our PP 298B colleagues, as well as Professor Mark Kleiman, our project advisor, for all of their constructive feedback and suggestions. Last and of course not least, thank you to our partners, roommates, families, and friends for listening to more about the Trafficking in Persons Report than you ever wanted to hear.

This paper was prepared in partial fulfillment of the requirements for the Master of Public Policy degree in the Department of Public Policy at the University of California, Los Angeles School of Public Affairs. It was prepared at the direction of Wenchi Yu Perkins, Director of the Anti-Trafficking and Human Rights Program at Vital Voices Global Partnership in Washington, DC, as a policy client. The views and statements herein do not necessarily reflect the views of Vital Voices Global Partnership, Wenchi Yu Perkins, the UCLA School of Public Affairs or UCLA as a whole.

FOREWORD Vital Voices Global Partnership, our client, is a nonprofit organization based in Washington, D.C. Vital Voices connects women around the world through knowledge-sharing, best practices, innovative partnerships and professional support so that women achieve economic independence, political rights and civic leadership, and the full protection of their human rights. One project at Vital Voices is the Anti-Trafficking and Human Rights Program. The program works to raise awareness about trafficking in women and girls and to assist victims sold into slavery in the United States. In addition, the program trains women leaders around the world to fight trafficking in their own countries. In the U.S., Vital Voices advocates for federal legislation regarding human trafficking. For our Applied Policy Project, Vital Voices requested that we examine some of the controversies and criticisms that surround the State Department’s Trafficking in Persons Report (TIP Report). Vital Voices, along with other organizations, played a vital role in crafting the U.S. government’s response to human trafficking, including passage of the Trafficking Victims Protection Act that created the TIP Report. Yet Vital Voices is concerned that, because of various criticisms, the TIP Report fails to realize its full potential impact and purpose of motivating foreign countries to take action in combating human trafficking. Vital Voices wanted an impartial, nonpartisan report that catalogued and explained those criticisms, and that provided recommendations for how the State Department or Congress could work to address the criticisms that hinder the Report’s impact worldwide. Vital Voices intends to publish this project on their website as the work of impartial graduate students, to share it with other organizations, and to use it as an advocacy tool to encourage the State Department to make changes in how it prepares the TIP Report. Vital Voices has extensive experience as an advocacy organization working in Washington, D.C. and abroad. Accordingly, the organization did not want us to develop an advocacy strategy or an action plan. Rather, our client wanted a paper that highlighted the issues, using evidence from the TIP Report and other experts, in order to lay a foundation for future advocacy work that might occur.

EXECUTIVE SUMMARY The Trafficking in Persons Report (TIP Report) is an annual report issued by the U.S. State Department as part of its efforts to combat human trafficking worldwide. The TIP Report documents and evaluates foreign governments’ anti-trafficking efforts and places countries in tiers depending on their level of compliance with a set of minimum standards and criteria laid out in U.S. law. Countries on the lowest tier may be subject to limited economic sanctions. The Report is intended to motivate other countries to act in the fight against human trafficking. The TIP Report is influential, in part because it is the world’s first anti-trafficking oversight and enforcement mechanism, tying governments’ efforts to a specific tier placement and to potential economic outcomes. However, the Report is sometimes criticized for being biased, politicized, or presenting incomplete information. In particular, there are questions about how the minimum standards are applied to countries, how the information included in the Report is gathered and analyzed, and how tier determinations are made and justified. Those criticisms reduce the persuasive power of the Report and thus limit its full potential impact on the behavior of other governments. This paper analyzes the TIP Report, focusing on the country assessment and tier determination processes, and offers recommendations for strengthening the Report. While changing the TIP Report will not eliminate human trafficking, it could make the Report a more credible diplomatic tool and thus increase its impact on foreign governments’ anti-trafficking efforts. In order to strengthen the TIP Report, the State Department should: • • • • • •

Address all of the minimum standards and criteria clearly and systematically in every country assessment. Explain the reason for tier movement clearly in country assessments when it applies. Disclose the nature and number of the sources at the end of each country assessment. Include trend arrows in the country assessments to indicate whether a government’s efforts have improved or declined since the previous year. Increase the emphasis on effectiveness of programs and laws in country assessments and tier determinations. Be clear about its intent when reporting on NGOs’ anti-trafficking efforts in the country assessments.

The State Department should also take the following steps to improve the information in the Report: • • •

Reach out to more NGOs for information. Take steps to help U.S. Embassy and other State Department staff improve their reporting of human trafficking issues. Minimize discrepancies between TIP Report and Country Human Rights Reports.

These changes constitute important first steps to improving the Report and enhancing its credibility, signaling to foreign governments and the international anti-trafficking community that the State Department is serious about combating human trafficking.

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INTRODUCTION Human trafficking, the modern manifestation of slavery, occurs when men, women, or children are coerced, sold, or deceived into a life of sexual exploitation or forced labor. The United States (U.S.) has taken several steps to combat human trafficking, both globally and at home. As part of those efforts, Congress mandated in 2000 that the U.S. Department of State produce an annual Trafficking in Persons Report (TIP Report) that briefly describes the nature and extent of human trafficking in countries around the world and assesses governments’ efforts in combating human trafficking. The Victims of Trafficking and Violence Protection Act of 2000,1 which mandates the TIP Report, specifies a set of minimum standards and criteria for the elimination of human trafficking against which the State Department must judge governments’ efforts. In the Report, countries are placed in tiers based on the governments’ anti-trafficking activities and on whether they have enhanced their efforts from year to year. Countries whose governments show no efforts to combat human trafficking or to comply with the minimum standards may be subject to limited sanctions. By ranking countries and threatening sanctions, the State Department intends to use the Report to motivate countries to fight human trafficking. TP

The TIP Report appears to be having an impact on foreign governments’ anti-trafficking efforts, but two main problems limit its full potential impact. First, the TIP Report suffers from credibility problems, largely due to accusations of bias and politicization. Critics suspect that the tier determinations and evaluative statements in the Report are sometimes used to reward U.S. allies and to punish those governments that have adversarial relationships with the U.S. Second, there have been concerns about whether the information presented in the country assessments is complete. The State Department may not be reaching or using enough sources, and the information in the country assessments does not always appear to be consistent with tier placements. If a government can dismiss its tier determination as politically motivated, and if the Report is unclear about why the State Department placed that country in a certain tier, then the tier system will not influence foreign governments’ anti-trafficking efforts as much as it otherwise could. The TIP Report is the only government-issued report on worldwide anti-trafficking activities that is based on primary research and that involves economic consequences. Accordingly, the perceived and actual accuracy and objectivity of the TIP Report matter for several reasons (Mertus 2004, 174; Gallagher 2001, 1137). Country assessments and tier determinations in the Report affect countries’ reputations, as well as their receipt of foreign economic aid. In addition, many foreign governments make significant efforts to conform to the standards that are defined in the U.S. law, also known as the TVPA, and the recommendations in the Report. Finally, many experts rely on the TIP Report for information, and many publications cite the Report. This paper analyzes the TIP Report and recommends ways that the State Department can improve the clarity, consistency and transparency of the Report in order to make it a stronger and 1

This law included the Trafficking Victims Protection Act (TVPA) and reauthorization of the Violence Against Women Act (VAWA). Throughout the rest of this report, we refer to this legislation as the TVPA, as it is commonly known. TP

more credible diplomatic tool. (For a description of our methodology, see Appendix A). In making the Report more clear and objective, the State Department is foregoing the opportunity to use the Report as either a reward to encourage governments to take actions unrelated to human trafficking that the U.S. favors or a punishment for governments that may be taking actions unrelated to human trafficking of which the U.S. government disapproves. Not only do we think that this is a worthwhile tradeoff in order to get an unbiased Report that has a greater impact on global anti-trafficking efforts, but there is also evidence that the State Department is already moving in that direction. For example, the State Department received praise in 2005 for placing Saudi Arabia and a handful of other U.S. allies in the lowest tier, which subjected them to the possibility of U.S. sanctions, effectively overlooking other unrelated political considerations (Smith 2005).

THE INCIDENCE AND DEFINITION OF HUMAN TRAFFICKING Although the clandestine nature of human trafficking complicates data collection (Langberg 2005, 129), a widely-cited State Department estimate indicates that 600,000 to 800,000 people are trafficked across international borders each year, about 80 percent of whom are women and girls (TIP Report 2005, 6). Millions more are trafficked within their own countries (Miko 2006, 1). Approximately 14,500 to 17,500 people are trafficked into the United States annually (TIP Report 2005, 6). The International Labor Organization (ILO) “estimates that there are 12.3 million people enslaved in forced labor, bonded labor, forced child labor, sexual servitude, and involuntary servitude at any given time” (as cited in TIP Report 2005, 7). Trafficking victims may be sexually exploited in brothels, strip clubs, massage parlors, or escort services. Victims may also be forced to work as slaves in sweatshop factories, agricultural settings, restaurants, construction projects, or domestic service. Many trafficking victims leave their homes or countries willingly, tricked into thinking they are moving on to a better life. Other victims are sold to traffickers by their families out of economic desperation, and still others are kidnapped (Calandruccio 2005, 280). Traffickers often physically and sexually abuse their victims, keep them isolated from the outside world, and threaten their families back home in order to maintain control and to prevent victims from escaping. Traffickers generally guard the victims’ passports or other travel or immigration documents that the victims would need in order to run away without facing the threat of deportation (Adepoju 2005, 83). Trafficking victims come from countries all over the globe and can be trafficked either within their own countries or to others. People who are trafficked across international borders tend to be trafficked from resource-scarce countries to countries with relatively more resources (Miko 2006, 2). Experts believe that most trafficking victims come from South and Southeast Asia. Since the end of the Cold War, the former Soviet bloc countries have become a primary source of trafficking victims for the sex industry. Victims also come from Latin America, the Caribbean, and Africa (Miko 2006, 2). There are a number of explanations for the existence of human trafficking and its proliferation in recent decades. Some of the constant factors that have allowed human trafficking to exist include the persistence of gender discrimination and gender stereotypes, as well as demand worldwide for trafficked victims as sex workers and cheap labor (Patten and Vesa 2005, 2; Miko 2006, 2). Furthermore, globalization and advancements in technology and communication have made it easier for people, money, and goods to move around the world. Organized criminals and other traffickers have taken advantage of that trend, and they have exploited situations of extreme poverty, armed conflict, and crisis to lure their victims with the promise of a better life. T

In November 2000, in response to the proliferation of and increased world attention on human trafficking, the United Nations (U.N.) General Assembly adopted the Convention on Transnational Crime, including the Protocol to Prevent, Suppress, and Punish Trafficking in

Persons, Especially Women and Children, also known as the Palermo Protocol (Miko 2006, 19). Although the definitions of human trafficking in the TVPA and Palermo Protocol are similar,2 many governments, NGOs, anti-trafficking advocates, and researchers define human trafficking differently (Laczko 2005, 10). For example, while several governments recently added forced labor to their legal definitions of human trafficking to reflect international law, others have not. In addition, some countries’ laws conflate human trafficking with forms of human smuggling that do not result in enslavement.3 Furthermore, many of the NGOs and government officials that should be most able to provide researchers with information about trafficking define human trafficking differently depending on their stances on the related and highly politicized issues of prostitution, immigration, and labor market protection (Tyldum and Brunovskis 2005, 18). Some NGOs and governments, for example, focus on sex trafficking to the exclusion of other forms of trafficking.4 These discrepancies affect the quality of data and information that bodies such as the U.N. and State Department are able to collect and may also affect the way the State Department evaluates governmental anti-trafficking efforts. TP

U.S. law defines “severe forms of trafficking in persons” as “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or… the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery” (22 USC §7102). The definition of trafficking outlined in the U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children is similar, although slightly broader in that it includes any form of exploitation, as well as organ removal (U.N. Protocol 2000, Article 3). Like U.S. law, the U.N. Protocol focuses on prevention and protection, along with the strengthening of domestic laws to aid in prosecution (U.N. Protocol 2000, Articles 2, 5, 6, and 9). 3 The term “human trafficking” does not refer to undocumented immigration that does not result in forced labor, nor does it refer specifically to assisting undocumented migrants who want to cross an international border. Also, although the word “trafficking” connotes cross-border movement, human trafficking does not necessarily involve crossing a border. The State Department has stated clearly that “the movement of [a] person to the new location is not what constitutes trafficking; the force, fraud or coercion exercised on [a] person by another to perform or remain in service to the master is the defining element of trafficking in the modern usage” (TIP Report 2005, 6). 4 For example, the home page of the Coalition Against Trafficking in Women states that it focuses on human trafficking, “especially sex trafficking of women and girls.” (http://www.catwinternational.org/ (accessed March 18, 2006)). TP

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BACKGROUND: THE TRAFFICKING IN PERSONS REPORT Human trafficking gained attention from both the U.S. government and the U.N. in the 1990s. In 1998, President Clinton established a U.S. strategy to combat human trafficking that consisted of prevention of human trafficking, protection and support for victims, and prosecution of traffickers. The Clinton administration drafted anti-trafficking legislation, and the U.S., along with Argentina, introduced the draft protocol on human trafficking to the U.N. in 1999 (Miko 2006, 19). Although U.N. treaties prior to the Palermo Protocol, including the Universal Declaration of Human Rights and the Convention on the Rights of the Child, had addressed the issues of enslavement and exploitation, U.S. support for dealing with human trafficking represented a step toward greater efforts to address the growing problem. Earlier U.S. and international efforts had not dedicated significant resources to fighting trafficking, nor had they specified steps governments should take to punish traffickers or to provide assistance and protection to victims. U.S. attention helped make the issue an international priority. The Trafficking Victims Protection Act U

In 2000, President Clinton signed groundbreaking anti-trafficking legislation, the Trafficking Victims Protection Act (TVPA). In general, this law requires more research and reporting on human trafficking worldwide, and it laid the groundwork for many programs domestically and abroad to begin serving victims and prosecuting traffickers. While the TVPA is not the world’s first anti-trafficking law, in mandating the TIP Report it did create the first assessment tool to tie governments’ anti-trafficking efforts to the potential for economic sanctions. By contrast, the U.N. is not authorized to enforce the Palermo Protocol. Instead, nations are supposed to describe their progress in combating human trafficking when they report on their other obligations to existing U.N. treaty monitoring bodies (Patten and Vesa 2005, 8). The TVPA requires the State Department to prepare and write the TIP Report each year, evaluating foreign governments’ anti-trafficking efforts against a list of minimum standards and criteria. Congress reauthorized the law in both 2003 and 2005, expanding the criteria each time. The first TIP Report was issued in July 2001 and included 82 countries. Since then, the State Department has been able to collect data on more countries, and the 2005 TIP Report included 150 countries. The State Department includes all countries which are deemed to have a significant number of trafficking victims,5 including those who were trafficked either to or from the country, and for which the State Department was able to collect enough information and data to write an assessment (TIP Report 2005, 30). TP

For the purposes of the TIP Report, a “significant” number of victims is “generally on the order of 100 or more victims” (TIP Report 2005, 30). TP

The four minimum standards used in judging governments’ anti-trafficking efforts are: (1) whether the country has a law prohibiting human trafficking, including all forms of forced labor, and whether there is a punishment for the crime of human trafficking; (2) whether the punishment for sex trafficking, including child sex trafficking, is as severe as that for crimes such as sexual assault; (3) whether the punishment for trafficking is sufficient to deter traffickers and signals the magnitude of the crime; and (4) whether the government displays “serious and sustained” efforts to combat trafficking (22 USC § 7106). The State Department determines a country’s compliance with the fourth standard, or whether a country’s efforts are “serious and sustained,” based on ten additional criteria. These criteria include whether the government intervenes if public officials participate in trafficking; whether the government assists victims, encourages their participation in prosecuting their traffickers, and avoids prosecuting them as criminals; whether the government cooperates with other countries and international bodies in extraditing traffickers and preventing trafficking; whether the government provides data on its trafficking-related investigations, prosecutions, convictions, and sentences to the U.S. State Department; whether the government monitors immigration and emigration patterns for evidence of human trafficking; and whether the government takes measures to prevent trafficking, either through education campaigns or by other means. (See Appendix B for the list of minimum standards and criteria as written in the TVPA 2000 and amended in 2003.) The 2005 TVPA reauthorization legislation expands the criteria to require governments to take measures to reduce demand for commercial sex acts, to ensure that their nationals who are deployed abroad in peacekeeping missions do not exploit human trafficking victims, and to prevent the use of forced labor (22 USC § 7107). These amendments will go into effect in 2007. The TVPA directs the State Department to place each country in a tier based on the extent to which its government meets the minimum standards. The law also authorizes grants to governments, either directly or through NGOs, “for programs, projects, and activities designed to meet the minimum standards” (22 USC § 2152d). Although the TIP Report includes a section describing all U.S. anti-trafficking efforts, the State Department does not place the U.S. in a tier. The tiers are ranked 1, 2, Tier 2 Watch List, and 3. Tier 1 represents the highest level, or those countries that comply fully with the minimum standards for anti-trafficking efforts (22 USC § 7107). Tier 2 countries are determined to be making significant efforts but have not met all of the minimum standards (22 USC § 7107). Tier 2 Watch List countries are also making efforts to comply with all of the minimum standards, but they either have large or increasing numbers of trafficking victims, have not made progress since the previous year, or their efforts to improve are only commitments to act in the coming year (22 USC § 7107). The provision to include this Watch List of countries was not part of the original legislation but was added as part of the 2003

TVPA reauthorization legislation. Tier 3 countries do not comply with the minimum standards and are making no visible efforts to do so (22 USC § 7107). Countries in Tier 3 are subject to economic sanctions unless the President either waives them or removes the country from Tier 3 because the country’s government has made significant efforts to comply with the minimum standards since being placed in that tier. Sanctions authorized by the TVPA involve the U.S. withholding both nonhumanitarian, nontrade-related assistance and funding for participation in educational and cultural exchange programs, as well as voting against International Monetary Fund and multilateral development bank assistance (22 USC § 7107). The decision of whether to apply or waive sanctions for each Tier 3 country is made by the President and announced in a Presidential Determination memorandum submitted three months after the release of the Report. Sanctioned countries in 2005 included Cuba, Myanmar, North Korea, Cambodia, and Venezuela. President Bush waived sanctions for Ecuador, Kuwait, and Saudi Arabia, which were also in Tier 3. The President moved Bolivia, Jamaica, Qatar, Sudan, Togo, and the United Arab Emirates from Tier 3 to the Tier 2 Watch List based on either new anti-trafficking activities or new information provided to the State Department. (See Appendix C for a list of all tier determinations in the 2005 TIP Report.) The Report, including the tier determinations, is issued every June. In addition to the Presidential Determination memorandum, the State Department issues an interim assessment approximately six months after the release of the TIP Report. During those six months, the State Department reexamines governments’ efforts in Tier 2 Watch List countries, as well as in those countries that the Department moved to a higher tier in the most recent Report. The purpose of the interim assessment is to provide a progress report for countries to which the State Department is paying special attention and to give countries guidance on avoiding future Tier 3 placements (U.S. Department of State 2006c). Preparing the TIP Report6 U

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The Office to Monitor and Combat Trafficking in Persons (TIP Office) coordinates the TIP Report writing process. The TIP Office gathers information from embassies all over the world, largely through U.S. Foreign Service Officers at each embassy who are responsible for writing reports on human trafficking in the countries where they work. Out of about twenty-four staff members in the TIP Office, approximately nine work directly on the Report. These nine staff members all have advanced degrees in either law or international development, most have lived and worked overseas, and many have handled trafficking issues in other federal agencies. Each year, TIP Office staff travel to all Tier 2 Watch List and Tier 3 countries, as well as some countries that are not yet in the Report but which the State Department staff believes warrant observation. During those visits, the staff meets with embassy officials, foreign government officials, and NGO representatives in order to gain a more complete picture of human trafficking in the country and anti-trafficking activities taking place there. When conflicts between NGO accounts and government reports arise, the State Department considers prior working

Except as noted, all information in this section derives from interviews with Gannon Sims (Press Officer, Office to Monitor and Combat Trafficking in Persons, U.S. Department of State), February 6, 2006, and February 27, 2006 and personal communication, February 28, 2006 and March 7, 2006. TP

relationships and the credibility of both the government and the NGO in an effort to determine the accuracy of those reports. The State Department also sends a questionnaire to approximately 1,000 NGOs in various countries in order to assess the trafficking situation from the perspective of those who are working on the ground. (See Appendix D for the 2006 questionnaire.) The questionnaire asks about law enforcement, victim protection, prevention activities, and health issues. It also asks NGOs to assess their governments’ efforts in each of those areas, as well as to describe their own work. Although these questionnaires have a very low response rate, the State Department also maintains regular contact with and gathers information informally from many NGOs throughout a given year. Some NGOs respond by telephone to avoid government retaliation in the event that their written responses are traced back to them. The questionnaire represents part of the State Department’s broader effort to gather as much information from as many sources as possible, to inform and educate NGOs about the State Department’s efforts to combat trafficking, and to express interest in NGOs’ work. T

The final country assessments that appear in the Report do not present all of the information that the State Department has collected; instead, they include only the information that the staff members believe indicates the extent to which a government satisfies the minimum standards in the TVPA. Furthermore, State Department officials emphasize that, in writing country assessments and making tier determinations, they do not compare any country to another, but rather that they compare each government’s current efforts to its own past efforts. (See Appendix E for a sample TIP Report country assessment.) Beyond providing information for governments in the TIP Report, the TIP Office communicates regularly with foreign governments regarding their anti-trafficking efforts, recommends actions governments can take to improve their tier placements, and provides foreign officials with information on “best practices” for combating trafficking. The State Department says that determining tier placements is an “internal process” that involves TIP Office staff and country desk officers,7 with final approval by the Secretary of State. The State Department does not release more information about the process, such as which specific personnel within the Department make the final tier decisions or how conflicting tier recommendations might be resolved. The Report itself is silent on the subject, other than a brief description of the factors State Department officials consider when making tier decisions. TP

The Report is still evolving and has changed significantly since its inaugural year, partly in response to Congress’ amendments to the TVPA and NGOs’ recommendations for change. Country assessments now include much more detail than they did in the first few Reports, and the Report assesses a growing number of countries. In addition, the Report devotes increasing space to forced labor rather than to sex trafficking alone, and the country assessments have begun to address the interaction between trafficking and immigration policies. The 2006 Report will include a more in-depth examination of forced labor, including a review of low-skilled labor and how it relates to trafficking, greater emphasis on law enforcement data, and comments on victim rescue strategies. Overall, the Report requires more improvement but has made

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Country desk officers act as liaisons between Embassy staff and other State Department staff in Washington, D.C.

significant progress since 2001, gaining some credibility with NGOs, foreign governments, and anti-trafficking advocates. Other State Department Assessment Tools U

The TIP Report is not the only assessment tool that the State Department produces. The Department also issues annual reports reviewing countries’ human rights records, efforts to curb the illicit drug trade, and levels of religious freedom. These reports inform the context in which the State Department writes the TIP Report and illustrate both the difficulties and potential for producing objective, credible reports. Like the TIP Report, these reports serve as sources of information about countries around the world, and they have been widely cited and criticized. Because of the State Department’s role in directing U.S. diplomacy, preparing objective reports that are insulated from other political considerations may be difficult for the Department. The State Department’s annual Country Reports on Human Rights Practices, for example, are intended to serve as background reports for government reference. The first of these reports were submitted to Congress in 1977. Like the TIP Report, the Country Human Rights Reports have covered an increasing number of countries; the current reports include 196 countries. Also like the TIP Report, early Human Rights Reports received many accusations of bias and politicization. Unlike the TIP Report, however, these reports contain some citations. In addition, as a supplement to the Human Rights Reports, the State Department issues an annual International Religious Freedom Report, which reports on the status of religious freedom in 195 countries. While Congress may base sanctions on information in these reports, there are no automatic or immediate consequences for governments with problematic records. According to one researcher, the Country Human Rights Reports “reflect a professional effort to report accurately and fairly,” and they are highly regarded by members of Congress and NGOs around the world (de Neufville 1986, 681). Another example is the State Department’s International Narcotics Control Strategy Report, which covers approximately 30 countries. This report serves as the basis for the Presidential “certification” process, which determines whether foreign governments are complying with U.S. anti-narcotics goals and are therefore eligible to receive U.S. nonhumanitarian economic aid. Although countries that the President decertifies may be subject to sanctions, the President may in some cases waive those sanctions (Perl 2000, 1). Many critics find the certification process controversial and raise questions about its objectivity (Perl 2000, 3).

ANALYSIS: CRITICISMS THAT UNDERMINE THE IMPACT OF THE TIP REPORT Although it is difficult to prove that the TIP Report enhances governments’ anti-trafficking efforts directly, there is evidence that many governments respond to the criticisms and recommendations made in the Report. The Report also appears to impact research on human trafficking. Foreign officials, anti-trafficking advocates, and academics frequently refer to the TIP Report for information and cite its facts and statistics. For instance, references to data in the TIP Report appear throughout several journal articles in a special edition of International Migration focused on human trafficking (vol.43, no.½, 2005). The American Bar Association’s Introduction to the Human Trafficking Assessment Tool also cites the Report frequently (Patten and Vesa 2005). Finally, NGOs such as the Coalition to Abolish Slavery and Trafficking (CAST) and the Polaris Project include facts from the TIP Report in their public information materials.8 TP

If governments and experts are to continue looking to the TIP Report as a reliable source of accurate information, the State Department must continually take steps to make the TIP Report the most accurate, consistent, and credible source possible. Two decades ago, an analysis of how the State Department’s Country Human Rights Reports became a leading source on human rights revealed that the reports gained respect by making improvements at the margin. That analysis also pointed out that “a major factor in improving the Reports…was public scrutiny and prodding from Congress and the NGOs” (de Neufille 1986, 688). This paper provides that same scrutiny to the TIP Report. Our research included reading academic articles, attending conferences, reviewing materials on the Web sites of anti-trafficking policy and service delivery organizations and interviewing government officials, academics, and anti-trafficking advocates and service providers. For a full description of our methodology, see Appendix A. Scope of Analysis: Country Assessments and Tier Determinations U

The analysis in this paper focuses on the clarity, consistency, and transparency of the country assessment and tier determination processes. Addressing these aspects of the Report is important because the Report is a widely-cited reference and because its tier placements have consequences for countries’ reputations and economic well-being. Some critics argue that the sanction regime authorized by the TVPA is too politicized and must change to be seen as credible (Chuang interview, 2006; Shifter 2004). This paper will not analyze that issue. The U.S. sanctions foreign governments for many reasons other than trafficking, and a full discussion of sanctions and their consequences is beyond the scope of this paper. In addition, this paper does not attempt to establish a definitive causal connection between the Report and foreign governments’ anti-trafficking efforts. While some governments have 8

Both of these organizations include facts from the TIP Report on their Web sites: Coalition to Abolish Slavery and Trafficking at http://www.castla.org/; Polaris Project at http://www.polarisproject.org. TP

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changed their laws and other anti-trafficking activities since the State Department began producing the TIP Report, it is difficult to measure how many of those changes are direct responses to the TIP Report. Many other factors influence government activities, and untangling the effect of the TIP Report from those other factors would be complicated. This paper also takes the TVPA and the TIP Report as given and does not address other policy alternatives that could enhance global anti-trafficking efforts. Congressional Intent: A Diplomatic Tool to Encourage Anti-Trafficking Efforts U

According to the language in the TVPA, the primary function of the TIP Report is to inform Congress about the extent to which foreign governments comply with the minimum standards for the elimination of trafficking as they are laid out in the law (22 USC § 7107). The tier system is intended to convey the level of compliance with those standards and to motivate foreign governments to take action. Both the TIP Report and Congress have claimed that the TIP Report is supposed to be both a diplomatic tool to motivate other governments to action and a foreign policy tool to help the U.S. determine how to allocate foreign assistance. TVPA author Representative Chris Smith (R-NJ) stated in 2005 that the Report “has been a powerful tool to encourage governments around the world to address the growing problem of trafficking in human beings for forced labor and sexual exploitation” (Smith 2005). Furthermore, the TIP Report states that it “is intended to raise global awareness and spur foreign governments to take effective action to counter all forms of trafficking in persons” (TIP Report 2005, 2). T

The mandate for the TIP Report is included under a section of the law entitled, “Actions against Governments Failing to Meet Minimum Standards.” By placing it under that heading rather than a heading that is related more explicitly to reporting or informing, Congress seems to indicate that the primary purpose of the Report is to motivate, if not threaten, foreign governments to take action to combat human trafficking. Moreover, the first subsection under this heading says, “It is the policy of the United States not to provide nonhumanitarian, nontrade-related foreign assistance to any government” that does not comply with the minimum standards or make significant efforts to bring itself into compliance with those standards (22 USC § 7107). The section goes on to describe how and when the U.S. should impose sanctions on Tier 3 countries. In addition to sanctions, the TVPA also authorizes grants to countries that may be in low tiers but are putting forth good efforts to combat trafficking and need help meeting the minimum standards. The Report states, “the [State] Department will use the information gathered in the compilation of this Report to more effectively target assistance programs and to work with countries that need help in combating trafficking” (TIP Report 2005, 29). The law indicates not only what the Report is supposed to be, but also what it is not supposed to be. The primary purpose of the Report is not to provide extensive descriptions of the scope of the human trafficking problem in every country, nor is the State Department supposed to determine countries’ tier placements based on the extent of their human trafficking problem. Rather, another section of the law explains in detail how the State Department should research and report on the nature and extent of the human trafficking problem in its Country Human Rights Reports (22 USC § 2151n; Mattar 2003b, 167). Furthermore, the law does not require the Report to evaluate “other government efforts that contribute indirectly to reducing trafficking,

such as education programs, support for economic development, or programs aimed at enhancing gender equality,” so these issues are not included (TIP Report 2005, 26). In Practice: The TIP Report’s Unmeasured Impact U

Congress and the State Department intend the TIP Report to influence foreign governments’ actions, but the actual impact of the Report has been unclear. While some governments have demonstrated a commitment to this issue and may increase their anti-trafficking efforts regardless of the TIP Report, for other countries the TIP Report may provide a source of pressure necessary to spur change. There is evidence that the TIP Report has had some impact. Since the TVPA passed in 2000, the number of laws worldwide that relate specifically to human trafficking has increased. A number of countries have passed anti-trafficking laws that recognize trafficked persons as victims of crimes rather than as criminals, others have amended their criminal codes to make trafficking in persons a criminal offense, and many more governments are in the process of drafting new anti-trafficking laws (Mattar 2003a, 43-4). While both these laws and the TVPA are probably responses to many factors, including regional initiatives focused on human trafficking and international mandates from the U.N., it is possible that the TIP Report also influenced governments to take action. One example of evidence that the TIP Report might have a direct impact on governments’ antitrafficking efforts is that some foreign public officials express sensitivity toward their countries’ tier placements. For instance, the Filipino press frequently prints public officials’ comments about the Philippines’ Tier 2 Watch List placement and the government’s anti-trafficking activities. Filipino Foreign Affairs Secretary Alberto Romulo said to the Manila Sun Star, “I wish to inform everyone that our government has successfully convicted three human traffickers. Our success in convicting these criminals bolsters our efforts to be taken off the watch-list of Tier 2 of the human trafficking list” (Editorial, 2005).9 TP

In addition, some governments respond visibly and vigorously to the opportunity to change their tier placement in the Presidential Determination or to improve their evaluations in the six-month interim assessment. For example, the Bolivian government accepted an action plan from the U.S. State Department that outlined steps for collecting anti-trafficking law enforcement data, establishing a shelter and hotline for victims, and distributing anti-trafficking awareness brochures (White House Office of the Press Secretary 2005). By the time of the Presidential Determination, the Bolivian government had followed all the steps or made commitments to do so, despite being in the midst of political chaos. The White House determined that these actions constituted “significant efforts” and moved Bolivia from Tier 3 to the Tier 2 Watch List in September 2005 (White House Office of the Press Secretary 2005). In addition, while the State Department reported in the 2006 interim assessment that most governments evaluated had made only modest or limited progress, it reported that the governments of Guinea, Gambia, United Arab Emirates, and others had made noticeable or significant progress since the last TIP Report (U.S. Department of State 2006c).

In the interim assessment, the State Department did recognize that the Philippines had made “initial progress in prosecuting human traffickers” but determined that it has made “modest progress” in combating trafficking overall (U.S. Department of State 2006c). TP

The case of Japan provides more evidence that the TIP Report impacts foreign governments’ anti-trafficking efforts. When the State Department first started writing the TIP Report, the Japanese government denied that it had a human trafficking problem and appeared to ignore its Tier 2 placement. By 2004, however, the Japanese government was becoming concerned with the impact of that placement on its image and began to acknowledge its human trafficking problem (Onishi 2005; Shinkle 2006, 6). The State Department placed Japan on the Tier 2 Watch List in 2004, criticizing the government’s lack of efforts to investigate cases, prosecute traffickers, or provide services to victims (TIP Report 2004, 96-97). The Japanese government then began to provide assistance to victims, drafted laws to criminalize trafficking and increase penalties for trafficking-related crimes, and restricted issuance of entertainer visas to Filipina women, who are often trafficked into the country with such visas (Lee 2005, 173). Consequently, the State Department restored Japan’s Tier 2 status in 2005. As time goes on, Congress can expect additional foreign governments to respond positively to the TIP Report only if those governments regard its findings and tier determinations as credible and accurate reflections of their anti-trafficking efforts, rather than as politically motivated or biased decisions. To our knowledge, there are no thorough analyses of the effectiveness of the TIP Report. However, there is some consensus that the effectiveness of the Report as a tool capable of influencing governments to increase their anti-trafficking efforts depends on both the actual and the perceived credibility of its country assessments and tier placements (Mertus 2004, 174; Gallagher 2001, 1137). Room for Improvement: A List of Criticisms U

Congress and the State Department have already responded to many of the criticisms leveled against the TIP Report since its inception in 2001 and have made marked improvements (Chuang interview, 2006; Sims interview, 2006). Some of the changes include the addition of a Tier 2 Watch List in order to indicate more clearly which countries are at risk of slipping into Tier 3, an increased emphasis on forced labor as a form of human trafficking, more discussion of the demand for sex trafficking as a root cause of the problem, more thorough Country Assessments, and the addition of several countries into the Report. Despite improvements, many foreign governments, domestic and foreign NGOs, and scholars continue to raise concerns about the tier system and country assessments (Chuang interview, 2006; Mattar interview, 2006; Pisklakova-Parker personal communication, 2006; Varia interview, 2006; Gindin 2005). Those concerns are tied to suspicions that the tier determinations and country assessments are biased, politicized, or otherwise flawed assessments of governments’ anti-trafficking efforts. Evaluating whether actual tier placements are appropriate and accurate reflections of a government’s activities, in an effort to refute or support those criticisms, is beyond the scope of this paper. Rather, this paper surveys and scrutinizes several of those criticisms in order to recommend ways in which the State Department can improve the TIP Report and effectively dispel many of those accusations. This section provides analysis of the criticisms. However, we argue that not all of these criticisms merit making changes to the Report.

Problem 1: Perception of Bias Critics suspect that political considerations unrelated to trafficking bias the tier determinations for some countries assessed in the TIP Report. As discussed above, this paper will not attempt to determine whether this is true. Our concern is that the perception of bias in a few country assessments threatens both the credibility of the entire Report and its ability to achieve its full potential impact. This section identifies several concerns with the design of and data collection process for the TIP Report, as well as how the State Department prepares the country assessments. The analysis highlights a lack of consistency, clarity, and transparency in the country assessments and tier determinations that leaves the TIP Report vulnerable to the criticism that political concerns unrelated to trafficking bias the tier determinations. (1) Minimum standards and criteria are applied inconsistently in country assessments. The TVPA requires tier placements to reflect compliance with the minimum standards and criteria in the law (22 USC § 7106, §7107). However, not all country assessments discuss all of the minimum standards and criteria explicitly, nor do they state clearly which standards or criteria governments satisfy or violate.10 Furthermore, the TIP Report does not clarify how the State Department weighs and considers each of the minimum standards and criteria for individual countries, all of which clearly have different levels of resources and may be facing different problems depending on whether they are countries of origin, destination, transit, or some combination of the three. U

The TIP Report’s assessments of France and Hungary exemplify this problem. The Report points out that French authorities routinely detain and jail trafficked individuals (TIP Report 2005, 106-7). That is a violation of the second criterion that a country should “[ensure] that victims are not inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts as a direct result of being trafficked” (22 USC § 7106). Nevertheless, the State Department placed France in Tier 1 in 2005, indicating that the French government “fully complies with the minimum standards.” By contrast, the State Department placed Hungary in Tier 2 in 2005 partly because “authorities continued to detain, jail, or deport trafficking victims who were often prosecuted as prostitutes” (TIP Report 2005, 121). Because the TIP Report did not address the standards and criteria systematically and similarly in each country assessment, and because it is unclear whether every criterion should be considered for every country, readers are left wondering why France’s violation of the second criterion appeared to be overlooked when Hungary’s violation was not. The assessments of Venezuela and Colombia also raise questions about the consistent, unbiased use of the minimum standards and criteria listed in the TVPA. For example, the TVPA calls for the State Department to consider “whether the government of the country monitors immigration and emigration patterns for evidence of severe forms of trafficking in persons” (22 USC § 7106). The assessment of Venezuela in 2004 appeared to count “long porous borders” that “facilitate the movement of trafficked persons into and through the country” among the reasons for placing Venezuela in Tier 3 (TIP Report 2004, 248). By contrast, the assessment of Colombia in the same year mentioned consistently unguarded borders and seaports, but the State Department still TP

Anne Gallagher also made this argument in 2001, just after the first TIP Report was released (Gallagher 2001, 1136). PT

placed Colombia in Tier 1. While the Colombian government has made extensive efforts to combat trafficking (Langberg interview, 2006) and may merit its Tier 1 placement despite its unguarded borders, the assessments do not explain how the criterion factors into the two countries’ tier determinations. This lack of clarity creates an apparent discrepancy in how the State Department applies TVPA criteria to different countries, further adding to the perception of biased country assessments and tier determinations. (See Appendix E for the assessment of Venezuela in the 2005 TIP Report and Appendix F for a full case study of Venezuela.) (2) Minimum standards and criteria are applied inconsistently from year to year. When the State Department moves a country from one tier to another, it is often unclear what that country’s government did to merit its new tier placement (Chuang interview, 2006; Jefferson 2002 and 2003; Human Rights Watch 2003). Also, when one year’s country assessment discusses a specific standard, that standard is not consistently included in the next year’s assessment. The TIP Report has seen significant improvements, and many assessments now explain why a country has moved from one tier to another. For other countries, however, it remains unclear what standard the country has recently violated or met to warrant a different tier placement. U

For example, the Report does not explain clearly why the State Department moved Benin from Tier 2 in 2002 to Tier 1 in 2003. The 2003 TIP Report stated, “Benin does not prohibit trafficking in persons, although anti-trafficking legislation is in the legislative process” (TIP Report 2003, 33). A 2003 Human Rights Watch press release pointed out that “Benin has not enacted domestic laws specifically prohibiting trafficking in persons, a step that should be a minimum standard for inclusion in Tier 1” (Human Rights Watch 2003). In addition, Benin’s 2003 assessment does not address some of the problems listed in the 2002 assessment that appeared to justify the country’s Tier 2 placement in 2002. For example, the 2002 assessment says that “the government does not systematically encourage victims to testify or file suit,” and that “due to a lack of resources and trained investigative personnel, Benin’s land borders with Togo, Burkina Faso, Niger and Nigeria are not well monitored” (TIP Report 2002, 30). However, the 2003 assessment does not discuss either of these concerns. The 2004 assessment explains the country’s movement back down to Tier 2, but the assessment simply presents much of the same information as in past years without providing new information to justify the demotion. T

(3) Country evaluations lack citations for factual or refutable statements. It is unclear whether and to what extent each country assessment relies on foreign government sources, NGO reports, U.S. embassy staff observations, or other sources (Chuang interview, 2006; Gallagher 2001, 1137). The methodology in the TIP Report section states, U

The Department of State prepared this Report using information from U.S. embassies, meetings with foreign government officials, NGOs and international organizations, published reports, research trips to every region, and the information submitted to the email address which was established for NGOs and individuals to report information (TIP Report 2005, 29).

However, not one country assessment refers to the sources that were used in its preparation. This lack of source information leaves open questions of whether the country evaluations and tier determinations in the TIP Report are impartial and accurate, as well as whether they tell a

complete story of what a particular government is doing to combat trafficking. The possibilities of biased information gathering, biased interpretation, or reliance on a small number of sources are enough to undermine the credibility of the Report and leave its neutrality open to question. (4) Tier 2 is too broad to be meaningful. Several critics agree that Tier 2 is a “catch-all category” (Chuang interview, 2006; Mertus 2004, 174; Human Rights Watch 2002). Tier 2 includes over half of the countries, 77 of 150, assessed in the 2005 TIP Report. Those countries represent an enormous range of compliance with the standards and criteria outlined in the TVPA, including such countries as Switzerland, Singapore, Vietnam, Japan, and Moldova. In practice, some Tier 2 countries have increased their efforts significantly but have yet to reach Tier 1. While the TIP Office staff takes appropriate pains not to compare countries (Sims interview, 2006), the number of Tier 2 countries and the lack of distinction among them in the TIP Report make it difficult to draw meaningful conclusions about a country’s anti-trafficking efforts based on its tier placement. This variety and large number of countries in Tier 2 compromise the clarity of the Report and the transparency of the State Department’s reasoning for placing countries the various tiers. U

Similarly, Tier 2 countries together encompass a broad range of trafficking-related circumstances, which require a wide array of responses. In particular, the tier includes source, transit, and destination countries for trafficked individuals, as well as countries that fall into two or three of these categories. Costa Rica, for example, is a source, transit, and destination country in Tier 2, while Burundi is a Tier 2 country that the Report says is only a source of trafficked individuals. Costa Rica likely requires a more comprehensive anti-trafficking effort than Burundi, where efforts need only focus on ways to reduce the number of people trafficked out of the country. In addition, country evaluations do not always state whether trafficking-related conditions, such as ongoing conflict or resource scarcity, afflict a given country or how those conditions affect the State Department’s expectations of that country’s anti-trafficking efforts. (5) The State Department’s tier determination process is unilateral. The TIP Report may be less credible as an evaluation tool because the State Department does not seek international collaboration in making tier determinations. As a result, the TIP Report is vulnerable to criticisms that country assessments and tier determinations are biased, based only on a U.S. perspective and value system, and influenced by U.S. political and economic interests. U

While this criticism may weaken the credibility of the TIP Report and compromise its ability to impact foreign governments’ actions, we believe that any changes to address those concerns would contradict Congress’ intent for the TIP Report. As stated above, the TIP Report is partly intended as a foreign policy tool for the U.S. government to use in determining how to spend taxpayers’ dollars, either by giving aid to governments that are trying to enhance their antitrafficking efforts or by withholding aid from those countries that are making few efforts. In addition, the minimum standards applied in the TIP Report are very similar to the minimum antitrafficking efforts required of governments that are party to the Palermo Protocol, which also focuses on prosecution, prevention, and protection. Therefore, if the TIP Report were to base its assessments of governments’ efforts on U.N. standards rather than those defined in the TVPA, it is likely that those assessments would turn out to be very similar to the current country assessments. For these reasons, we will not recommend ways to address this critique.

(6) The State Department does not place the U.S. in a tier. Some critics find fault with the fact that the U.S. does not place itself in a tier (Langberg interview, 2006; Varia interview, 2006). This creates the appearance that the U.S. government believes it is either above the law or believes its anti-trafficking efforts are adequate and, therefore, do not need to be evaluated. U

This criticism may weaken the credibility of the TIP Report, but making changes in an attempt to address it would not likely allay such concerns. We believe that placing the U.S. in a tier, especially Tier 1, would be a futile effort at alleviating criticism. Those who criticize the TIP Report for being biased would likely continue to do so, pointing to the fact that the U.S. put itself in Tier 1 as a clear example of such bias. Alternatively, the State Department could ask an independent group to determine its tier placement. However, that placement would not necessarily be consistent with the rest of the tier placements because the independent group would not be able to replicate the State Department’s decision process, nor would any binding consequences result from such a tier placement. The TIP Report already includes a detailed description of all U.S. government anti-trafficking efforts, and the U.S. Department of Justice produces an annual report assessing all U.S. activities to combat trafficking, which includes suggestions for ways the U.S. government can improve its efforts (U.S. Department of Justice 2005). For these reasons, we will not recommend ways to address this critique. (7) Country assessments and tier determinations do not clearly address or reflect concerns related to prostitution. Some critics argue that legalizing prostitution may actually worsen the problem of human trafficking (Raymond 2003, 2; Hughes 2002). They argue that countries with legalized prostitution, such as the Netherlands, should not be placed in Tier 1 because “legalized prostitution makes it difficult to hold traffickers accountable for their activities” (Hughes 2002, 2-5). They also argue that Congress intended the second minimum standard, which requires governments to make sex trafficking illegal, to include prostitution, with no distinction between forced or voluntary prostitution (Mattar 2003b, 167-8). The Bush administration makes a similar argument. A U.S. Department of State document says, “Prostitution is inherently harmful and dehumanizing… Where prostitution is legalized or tolerated, there is a greater demand for human trafficking victims and nearly always an increase in the number of women and children trafficked into commercial sex slavery” (U.S. Department of State 2004a). According to this argument, by placing countries with legalized prostitution in Tier 1, the State Department fails to apply all the minimum standards to certain countries and effectively disregards factors such as legalized prostitution that might cause a country to be a destination for sex trafficking (Mattar 2003b, 167-8). U

However, there is conflicting evidence about the connections between legalized prostitution and human trafficking, and it is not clear that the TIP Report would have a greater impact on governments’ anti-trafficking efforts or be more credible if all countries with legalized prostitution were removed from Tier 1. While some anti-trafficking advocates and experts link the issues of legalized prostitution and trafficking, others argue that tying legalized prostitution to an increase in human trafficking “deflects from an investigation of the real causes, the real underlying issues” that explain why human trafficking exists (Ann Jordan, as quoted in Chen 2005). Many advocates and foreign governments would likely find the TIP Report less credible if the U.S. was to consider legalized prostitution as a reason for being denied Tier 1 placement.

The year-long debate at the U.N. over whether to include legal prostitution in the definition of human trafficking used in the Palermo Protocol further underscores the degree of international disagreement on this issue (Jordan 2002, 32). Furthermore, many scholars argue that traffickers can hide their crimes easily in places where prostitution is illegal because the industry is underground and because authorities have difficulty discerning between women who have chosen to become prostitutes and those who are trafficked and forced into it (Wallace 2002, 5812). Scholars also argue that “Criminalizing prostitution has an even more deleterious effect on foreign women who, knowing they could be deported for such activity, are reluctant to prosecute those who exploit them or seek protection from legal authority” (Wallace 2002, 580). In any case, it is unclear whether legalized prostitution encourages human trafficking or not. Therefore, we do not recommend ways to address this critique. Problem #2: Quality of Information Reliable data on human trafficking are notoriously scarce (Gozdziak and Collett 2005, 118; Laczko 2005, 5), so improving the process of gathering data is just as important as improving the way in which the information is used.11 Without a clear and transparent methodology for data collection and analysis, the Report leaves readers wondering whether the information presented is complete and accurate. Despite the challenges, the State Department appears to be working hard to collect accurate data that reflect the extent of the problem globally (Sims interview, 2006). The critiques in this section are not focused on data collection problems as they relate to the extent of human trafficking or the number of victims and traffickers. Rather, this section focuses on the quality of information gathering, reporting and analysis necessary to make informed and balanced decisions about a government’s efforts to combat trafficking, as well as on the presentation of that information in the TIP Report. TP

(1) The information presented in the country assessments does not support the tier determinations adequately. The State Department bases country assessments and tier determinations partly on information solicited from NGOs in each country evaluated in the Report. However, Ambassador John Miller, the director of the TIP Office, said that the response rate to their NGO survey in 2004 was “infinitesimally small” (as quoted in an International Rescue Committee newsletter, 2004). Some reasons that foreign NGOs may not return the survey or share information with the State Department are that there are language barriers, they do not understand the survey’s intent, they are overwhelmed with their other work, or they do not believe they have important information to contribute (Pisklakova-Parker personal communication, 2006). Furthermore, some anti-trafficking NGOs may hesitate to provide information about their efforts to the State Department for fear of retaliation from their own governments for speaking critically about them or because they disagree with U.S. policy on any number of issues (Chuang interview, 2006). Embassy staff and other State Department officials also try to have other forms of contact with a number of NGOs, including those who do not respond to the survey (Sims interview, 2006). However, the lack of input often means the State Department makes country assessments and tier determinations without incorporating the valuable perspectives of many NGOs. U

Judith Innes de Neufville advanced this argument regarding the State Department’s Human Rights Country Reports (de Neufville 1986). PT

(2) Country assessments do not adequately consider effectiveness of laws and programs. The minimum standards state broadly that governments should “prohibit severe forms of trafficking” and “prescribe punishment that is sufficiently stringent” (22 USC § 7106). The country assessments discuss anti-trafficking laws, but the Report does not state whether governments receive credit for these laws at face value or whether the State Department considers their effectiveness (Human Rights Watch 2003; Mertus 2004, 174). Furthermore, the Report does not discuss whether countries’ anti-trafficking laws are comprehensive and will actually prevent trafficking, or are not simply symbolic gestures filled with loopholes and vulnerable to negative or unintended consequences. In Congressional testimony, international legal expert Mohamed Mattar said that, while the TIP Report does consider whether a country has specific antitrafficking legislation, “it is not clear to what extent the TIP Report considers legislation in placing countries in the three tiers” (Mattar 2003a, 52). He described the factors that, in his view, would comprise a comprehensive and effective legal response to human trafficking, noting that many foreign laws are flawed or incomplete (Mattar 2003a). Similarly, although the TVPA calls for protection efforts and prevention programs (22 USC § 7106), the TIP Report does not specify whether foreign governments’ anti-trafficking programs are effective (Chuang interview, 2006). U

(3) Country assessments sometimes conflict with Human Rights Country Reports. The Country Reports on Human Rights Practices, which are written by the State Department’s Bureau of Democracy, Human Rights, and Labor, contain a section describing each country’s trafficking situation. The TVPA requires the Country Human Rights Reports to be comprehensive about the extent and nature of human trafficking in a country (22 USC § 2151n). While the Country Human Rights Reports and the TIP Report have become more consistent with each other over the past few years (Chuang interview, 2006), the country assessments in the two different reports still sometimes contradict each other, calling the accuracy of both reports into question. U

For example, Nepal is a Tier 1 country in the 2005 TIP Report. While the State Department’s Country Human Rights Reports released in 2005 and 2006 for Nepal concede that the government is trying to address human trafficking, they both describe the government of Nepal as lacking “both the resources and institutional capability to address effectively its trafficking problem” (Country Reports on Human Rights Practices 2005 and 2006). The 2005 Country Human Rights Report also states that “enforcement of anti-trafficking statutes improved but remained sporadic” (Country Reports on Human Rights Practices 2005). These concerns contradict Nepal’s Tier 1 placement in the TIP Report, which indicates that Nepal’s government is fully complying with the minimum standards. The Protection Project, an anti-trafficking nonprofit organization at the Johns Hopkins School of Advanced International Studies, says in its 2005 evaluation of Nepal, “The low risk of prosecution and enormous profit potential make Nepal a haven for traffickers” (Protection Project 2005, 2). The Protection Project’s evaluation also points out that, while Nepal’s strict laws have benefits, one consequence is that Nepalese courts require more evidence than trafficking victims can generally provide, making prosecution of traffickers difficult (Protection Project, 5).

RECOMMENDATIONS: STRENGTHENING THE TIP REPORT The way the State Department prepares and presents the country assessments, as well as its process for making tier determinations, shapes how transparent, clear, and consistent the Report appears. Changing the process of writing the Report or the way the Report describes how tier determinations are made could increase the credibility of the Report as a consistently accurate and impartial reflection of foreign governments’ anti-trafficking efforts. This increased credibility would make the TIP Report a stronger positive influence on governments’ antitrafficking efforts. Based on our interviews with State Department officials, the TIP Office has much of the information necessary to satisfy the recommendations below (Sims interview, 2006). However, the Report does not state clearly what information the State Department uses to assess countries and make tier determinations. Based on the criticisms and analysis outlined above, this paper recommends several adjustments to the country assessment and tier determination processes that would make the TIP Report more credible and informative. We followed several criteria to determine which recommendations to advance. The main criterion was political feasibility: each recommendation had to be a change that would minimally impact the State Department’s budget; that was not ideological along partisan lines; and that was consistent with Congress’ vision for the TIP Report. The recommendations include some changes that the State Department can make in the short term (i.e., in the next TIP Report), some that will take a longer time to implement, and both minor and more significant changes. All of the recommendations address either the perception of bias or the quality and presentation of information underlying the country assessments and tier determinations. Reducing the Perception of Bias in Country Assessments and Tier Determinations U

(1) Address all minimum standards and criteria systematically and clearly in each country assessment. Systematic discussion of each standard and criterion in each assessment would strengthen the reputation of the TIP Report in at least two ways. First, showing readers explicitly that the State Department considers all minimum standards and criteria before making tier determinations would help to alleviate concerns that tier placements are influenced by political considerations unrelated to human trafficking. Second, a country assessment that illustrates which standards and criteria a government addresses sufficiently and which it does not would clarify exactly why the specific tier determination was made and would inform governments about what they need to improve upon and what they are already doing well. It is possible that Congress does not intend every criterion to be applied to every country, as some criteria are more or less applicable depending on whether a country is a source, transit, or destination country, or some combination thereof. Therefore, even if the State Department finds that a particular criterion is not as relevant to a particular government’s efforts, the Report should explain that the issue in question does not apply to the country. In order to be more systematic, the State Department should consider including a checklist with brief explanations at the beginning of each assessment to demonstrate whether a government meets each standard and criterion or not. U

Although State Department officials stress that they already consider all standards when making tier determinations, writing the country assessments according to a systematic format might involve considerably more effort than does writing the country assessments in their current format. However, the State Department has already adjusted its country assessment format once to make the assessments clearer and more comprehensive, so recommending that staff do this again is not unreasonable. Furthermore, given the criticisms about the lack of consistent attention to minimum standards and criteria in the assessments, the benefit from clarifying those assessments would outweigh the costs of the additional time and effort. Finally, the country assessments often include only minor changes from year to year; now that the TIP Report has existed long enough that staff members do not have to write much new material, they may have more time to make these changes. (2) Explain the reason for tier movements clearly. If the State Department moves a country from one tier to another, the Report should explain as specifically as possible, and with reference to exact standards and criteria, what the government did or did not do to warrant that change. Such explanations would mitigate perceptions that the State Departmentâ&#x20AC;&#x2122;s tier movement decisions are arbitrary or based on political concerns unrelated to human trafficking, and they would send clearer messages to governments about their performance. The State Department should make this adjustment to all relevant country assessments regardless of whether it chooses to implement Recommendation (1). U

(3) Disclose the nature and number of sources at the end of each country assessment. The State Department should add to the end of each country assessment a list of the number and types of sources used to assemble information. Many other assessment tools do this in order to augment the credibility of their evaluations. Because the State Department already has the information necessary to implement this recommendation, this should require minimal additional effort. U

For several reasons, we do not recommend adding specific citations for every bit of information presented in the TIP Report. First, some NGOs may not want their governments to know that they reported negative information to the U.S. Second, neither Congress nor the State Department intends the TIP Report to be an academic study of governmentsâ&#x20AC;&#x2122; anti-trafficking efforts. Finally, the State Department does not need to use full citations to strengthen the credibility of the TIP Report. Rather, the Department could improve the Report simply by disclosing the number of NGOs, the types of government agencies, and other sources that contributed information to the country assessments. Disclosing some details about sources of information would strengthen the credibility of the TIP Report by allowing readers to assess for themselves whether the number and types of resources for a given assessment could reasonably provide sufficient information on which to base country assessments and tier determinations. Including this information in the Report might also allow the State Department to see gaps in data collection or to identify countries in which NGOs seem unwilling to offer information, both of which might allow staff to focus their information-gathering strategies. Other reports that use criteria to score or rank countries and that fully describe their sources, data collection and analytical methods could be used as models for the TIP Report. For example,

Transparency International’s Corruption Perceptions Index evaluates and scores the level of corruption in 159 countries around the world. The report uses surveys and reports from a number of sources, and it lists the number of sources that contribute to each country’s corruption score. The report also describes in some detail how those attributed sources define and collect data, including in some cases the exact wording of surveys. Similarly, Freedom House’s Freedom in the World report evaluates levels of political rights and civil liberties. While this report does not include citations, it does include a list of all of the sources used in the report, which is divided by region. The report also contains a detailed methodology section that describes the history of the report, as well as a checklist the staff follows to determine a country’s score and clear definitions of the key terms used in the report. Freedom House asked an academic expert to develop its current methodology, which the report has used since 1972 (“Methodology,” Freedom House 2006). Freedom in the World covers 192 countries, and Freedom House takes pride in its emphasis on “intellectual rigor and balanced and unbiased judgments” (“Methodology,” Freedom House 2006). Both of these reports are widely cited by researchers. (4) Add trend arrows to the country assessments to indicate whether a government’s efforts have improved or declined since the previous year, even if the country has not been moved to a new tier. Trend arrows would make the TIP Report a more informative document by providing governments and other interested groups with a clear signal of the State Department’s perspective. Despite criticisms that Tier 2 is too broad, we believe that broad categories allow the State Department to classify countries in a similar way if they are putting forth similar antitrafficking efforts relative to their available resources. Broad tiers allow for this even in cases where the countries have extremely different levels of resources with which to combat trafficking. At the same time, trend arrows would address the problem that the tiers do not reward increased efforts from one year to the next unless those efforts are extensive enough to merit a higher tier placement. These observations apply particularly to Tier 2, which included just over half of the countries assessed in the 2005 TIP Report. Making this change would require minimal effort on the part of State Department staff, since staff members already must assess any changes in governmental efforts each year and come to conclusions about whether there have been improvements in each country. U

Alternatively, Tier 2 could be split into more tiers, but adding trend arrows is a simpler way to add nuance to the tier system. Including trend arrows would require little extra effort but would communicate a fuller story to readers than past TIP Reports have and give credit to governments that have made significant efforts, even if those efforts were insufficient to merit a change in tier placement. By contrast, creating more tiers would require Congress and the State Department to make significant legal and procedural changes. For example, Congress would have to pass legislation creating the new tier(s) and define each new tier’s parameters, and the State Department would have to re-determine how to apply the minimum standards and criteria to each country. Furthermore, governments and NGOs have likely become accustomed to the current tier system, and more changes could generate frustration and confusion. Given such considerations, Congress is unlikely to create more tiers in future legislation, and we do not recommend such a change.

Another option is to give each country a score based on its efforts and compliance with the minimum standards, as do other annual reports in their attempts to assess certain behaviors concretely. For example, Freedom House’s Freedom in the World Report scores countries on a scale of one to seven based on two checklists that evaluate levels of political rights and civil liberties. Also, Transparency International’s Corruption Perceptions Index scores countries’ level of corruption on a scale of one to ten, based on surveys of groups and individuals attempting to do business in each country. We do not believe this approach is suitable for the TIP Report for many reasons. A scoring system might convey the sense that the State Department compares countries assessed in the Report to each other, which the State Department appropriately wants to avoid (Sims interview, 2006). In addition, with 150 widely different countries in the Report, readers would not necessarily be able to draw meaningful conclusions based on scores, since even a weighting system would mask differing priorities and levels of resources. Improving the Quality of Information in Country Assessments U

(1) Reach out to more NGOs for information. Gathering reliable data and obtaining complete information about human trafficking is a challenge. But reaching more sources would improve the quantity and quality of information in the Report, which would enhance the credibility of both the country assessments and the tier determinations by making them more accurate reflections of governments’ actual anti-trafficking work. Accordingly, the TIP Office should continue the hard work it has already begun to survey more NGOs. The State Department should make it a priority to reach as many NGOs worldwide as possible in order to collect information about governments’ anti-trafficking efforts. Enhanced outreach efforts and improved connections between TIP Office staff, Embassy staff, and NGOs would likely increase the response rate to the TIP Office’s questionnaire or help the TIP Office gain access to information that is not captured in the survey. If the State Department gathers information from more NGOs, the country assessments will be more complete, and those NGOs that participate may find the Report as a whole more credible. U

Congress has expressed support for the idea that NGOs should be consulted as much as possible in order to contribute to the State Department’s Country Human Rights Reports. The TVPA states that, “in compiling data and making assessments” on human trafficking issues for the Country Human Rights reports, “United States diplomatic mission personnel shall consult with human rights organizations and other appropriate nongovernmental organizations” (22 USC § 2151n). It is reasonable to assume that Congress intends the same for the TIP Report. The State Department might consider either contracting with an independent organization to gather information or requiring that any NGO that receives U.S. government funds complete the questionnaire. Both of those steps could help to increase the reponse rate to the questionnaire and enhance the information that the TIP Office receives from foreign NGOs. (2) Take steps to help U.S. Embassy and other State Department staff improve their reporting of human trafficking issues. The collection and presentation of information in the TIP Report is somewhat inconsistent, suggesting that those who contribute to the Report may have different levels of expertise and experience with the issue of human trafficking. These inconsistencies U

leave the Report more vulnerable to criticism than it would be if the information presented were of uniformly high quality. Currently, the Foreign Service Institute offers classes to new Embassy staff on human trafficking issues (Sims interview, 2006). However, not all Foreign Service Officers who are doing human trafficking research in the field have attended these classes, and some Officers may have extensive knowledge of human trafficking while others know far less about the issue. All Embassy staff members working on human trafficking should have the education and training necessary for them to provide the TIP Office with appropriate information about governments’ anti-trafficking efforts. Embassy staff members should be able to recognize “sufficient” government efforts to implement laws and programs to protect trafficking victims, prevent trafficking, and prosecute traffickers. There are a number of ways that the State Department can improve the quality of writing, reporting, and evaluation in the Report. The Department may want to consider providing specific training or other educational tools for Embassy staff in both substantive and methodological issues. That might increase the State Department’s ability to base country assessments and tier determinations not only on the existence of anti-trafficking laws, but also on whether those laws are effective, comprehensive, and implemented with the right intentions.12 In addition, the TIP Office should consider consulting with NGOs and academic experts through a formalized process of task forces and advisory groups in order to evaluate and improve the methods of gathering and analyzing data. TP

(3) Increase the TIP Report’s emphasis on effectiveness of programs and laws. The State Department has increasingly focused on effectiveness in the Report, and these efforts should continue. Although investigating the effectiveness of laws and programs more thoroughly might require significant staff effort, this is an important next step in making the TIP Report a more reliable and credible source. Country assessments that discuss the effectiveness of laws and programs are more accurate reflections of governments’ intentions than country assessments that credit the mere existence of a program or law without looking at whether it is or could be effective. Without further efforts to recognize effective anti-trafficking laws and programs, the TIP Report will simply be rewarding governments even if they pass toothless laws that they do not intend to enforce or start ineffective programs that may earn them credit in the TIP Report but are cheaper than programs that work. By contrast, emphasizing effectiveness would increase the credibility of the TIP Report by making the country assessments and tier determinations better reflections of governments’ genuine anti-trafficking efforts. U

Evaluating effectiveness would be resource-intensive unless the TIP Office used extraorganizational resources. There are efforts by NGOs and others in the international community to determine best practices for anti-trafficking work. For example, the United Nations Office on Drugs and Crime (UNODC), in collaboration with the United Nations Interregional Crime and Justice Research Institute (UNICRI), has designed the Global Programme against Trafficking in Human Beings (GPAT) in order to assist governments and NGOs in their efforts to combat human trafficking. The UNODC is currently collecting best practices used in combating trafficking, with an emphasis on those related to criminal justice. This is one resource the TIP TP

Judith Innes de Neufille made a similar argument in 1986, suggesting that Foreign Service Officers who collect information for the Human Rights Reports be trained in research methods so they can be “professional in gathering evidence, assessing its bias, and reporting objectively” (699). PT

Office could look to when evaluating the efficacy of other governments’ efforts, as GPAT’s purpose is to “provide assistance to agencies, institutions and governments as part of an interdisciplinary effort to design effective measures against trafficking in human beings” (UNODC, undated). (4) The TIP Report should be clear about its intent when reporting on NGOs’ anti-trafficking efforts. Governments are not supposed to receive credit for the work that NGOs do, unless they are supporting the NGO’s work financially or otherwise. Country assessments often mention NGOs’ anti-trafficking work but do not explain whether the State Department is crediting governments for allowing or encouraging NGO activities, criticizing the government for not providing those services itself, or simply offering neutral information. Discussions of NGO activity should emphasize efforts that are supported by the government and should describe what that support looks like. Congress clearly intended the TIP Report to concentrate on governments’ efforts, and simply allowing an NGO to exist in the country does not represent enough effort that the State Department should credit a government for taking action against trafficking. While the Report writers may want to include other examples of NGO activities in order to offer a more complete picture of anti-trafficking efforts in a given country, the TIP Report should be clear that the government is not receiving credit for those activities. Providing a clear explanation for how the information in the Report relates to the tier determination would increase the transparency of the TIP Report, as well as clarify what information in the Report is simply informative and what contributes to tier determinations. This change would require minimal additional effort on the part of State Department staff members. U

(5) Minimize discrepancies between TIP Reports and Country Human Rights Reports. The TIP Report country assessments and the trafficking sections of the Country Human Rights Reports should match as much as possible. When there are inconsistencies between the two reports, the TIP Report is more open to criticisms of inaccuracy, and possibly bias, because readers can quote another State Department source that contradicts assessments in the TIP Report. While they do not need to provide identical information, the description of the trafficking situation in the country should be the same in both reports. If both reports are unbiased, and if the TIP Report is focused only on human trafficking and not influenced by other concerns, then these two reports should match. The staff members writing assessments for the same countries in the two reports should consult one another frequently to share information, and they should review each other’s written assessments before either report is finalized. U

CONCLUSION The TIP Report is a valuable diplomatic tool, and after only five years, it appears to be having a positive impact on foreign governmentsâ&#x20AC;&#x2122; anti-trafficking efforts. However, several criticisms undermine the full impact that the Report can have. The recommendations offered in this paper aim to make the TIP Report stronger and to improve its reputation among foreign governments, NGOs, advocates, and academics. Issues that have gone unaddressed in this paper, especially the de-politicization of sanctions, are also important to evaluate and address in future years. Addressing such issues, however, would require significant, complicated, and often controversial changes to U.S. foreign policy. Meanwhile, implementing the recommendations offered in this paper would help to insulate the TIP Report from appearing to be influenced by political considerations outside the intent of the TVPA. It is our hope that the U.S. can continue to be a motivating force in the world to combat human trafficking. No person should be denied her freedom or her right to basic human dignity. But eradicating trafficking will require global cooperation and a commitment from every government to protect its citizens from those who would enslave them. We believe that the TIP Report is one piece of a larger puzzle that can move us forward in that direction.

APPENDIX A: METHODOLOGY In writing this paper, we began with several assumptions. For three reasons, we chose to take the State Departmentâ&#x20AC;&#x2122;s TIP Report as a given policy tool rather than weighing it against alternative policies that might address foreign governmentsâ&#x20AC;&#x2122; anti-trafficking efforts. First, there has been bipartisan support for the Report in Congress and very little political opposition to it. Second, the State Department has already made many improvements to the Report and appears to have the will and capacity to improve it further. Third, the State Department has a network of Foreign Service Officers around the world with first-hand knowledge about foreign countries and access to foreign government officials. Given its extensive primary research capabilities, the State Department has clear advantages over smaller, independent organizations in gathering information about anti-trafficking activities. While human trafficking is not generally a divisive issue in American politics, several related issues, such as prostitution and immigration, are controversial. Because our client, Vital Voices Global Partnership, is a non-partisan organization, this paper avoids making recommendations about those issues that might provoke strong, partisan reactions. Our research included reading academic articles, attending conferences, reviewing materials on the Web sites of anti-trafficking policy and service delivery organizations and interviewing experts. We performed interviews and numerous Web searches in an effort to find all publications that directly discuss the TIP Report. Given that the Report has existed only since 2000, we believe that our search was thorough and that we have read the vast majority of the available English-language papers on the topic, including some unpublished documents. About the Literature Review U

While there is a growing body of literature on the broad topic of human trafficking, literature that discusses the TIP Report is limited for two reasons. First, the Report has only existed for five years, so there has been a limited amount of time for people to study and write about it. Second, most people who work on anti-trafficking efforts and who are aware of how the TIP Report is received and perceived in the world are advocates or service providers rather than academics, and they publish very little. Given the limited body of work to research, we believe we read the majority of what is written about the Report. We read thirty documents related to the TIP Report, as well as many other documents related to human trafficking generally or to other types of reporting tools. About the Interviews U

We interviewed key individuals who had knowledge of the TIP Report and who were from a broad spectrum of ideological and political perspectives. While this amounted to only eleven interviews, the field of people who focus on the TIP Report is so small that this is actually a thorough group of experts on the issue. Because the TIP Report has expanded every year since its inception in 2001, many of the articles available are not recent enough to reflect those

changes. Interviewing experts allowed us to cull up-to-date information on what advocates, service providers and policymakers think of the TIP Report in its most current form. That information provided a necessary supplement to the existing literature and allowed us to paint a more complete picture of reactions to the TIP Report. We asked each interviewee to describe her views on the TIP Report, its strengths and shortcomings, any criticisms she might have, and her recommendations for improving the Report. In addition, we asked about each intervieweeâ&#x20AC;&#x2122;s anti-trafficking work as it relates to the TIP Report. We chose some of our interviewees because their names appeared regularly in relevant academic literature and newspaper articles, and we chose others based on suggestions made either by our client or by other interviewees. Interviewees included academics and legal experts, a State Department official, a former Organization of American States trafficking specialist, current and former Human Rights Watch staff members, a director of a Russian antitrafficking NGO and Capitol Hill staffers. These interviews allowed us to cull a wide variety of regional, ideological and sectoral perspectives on the TIP Report. While most people agreed to our requests for interviews, a small number did not respond to our requests. With one exception, people who work with foreign anti-trafficking NGOs did not respond. Because most of these individuals do not have published opinions on the TIP Report, their views were more difficult to include in our research. Their views would have infused more regionally-specific, firsthand perspectives into our analysis, which would have provided valuable information for case studies. At the same time, it would have been difficult to obtain a truly representative sample of NGO respondents given our time constraints and the large number of foreign anti-trafficking NGOs in certain parts of the world. Consequently, a non-representative sample might have biased our analysis and recommendations toward issues relevant only to certain countries or regions. We took steps to make up for a lack of interview data from anti-trafficking advocates and experts whose perspectives we did not capture in our interviews. Many of our interviewees have done extensive work with other advocates, policymakers, service providers and foreign NGOs and, as a result, could share with us a broader perspective based on their personal experiences at and contacts with both U.S.-based and foreign anti-trafficking organizations. Also, a few antitrafficking experts and organizations have published their reactions to and critiques of the TIP Report, ranging from NGOs such as Human Rights Watch to academics at various universities. In two cases, when individuals we contacted did not respond, we used their published statements in place of interviews whenever possible (Hughes 2002; Jordan 2002). In addition, we used notes from a 2004 roundtable meeting organized by our client specifically to collect NGO responses to the TIP Report. The meeting brought together twelve experts, including a State Department official, trafficking researchers and anti-trafficking service providers, who discussed specific ways in which the TIP Report and other State Department antitrafficking efforts could be improved. In addition to our interviews and literature review, these notes gave us a comprehensive view of the major concerns regarding the Report and which changes Congress and the State Department might support. U

About the Creation and Selection of Recommendations U

In order to generate a list of recommendations, we documented all the suggested ways to change the TIP Report that appeared in our research. Each recommendation we included in this paper reflects concerns raised by the global anti-trafficking community. As a result, our recommendations stem not only from interviews, but also from an extensive review of existing literature regarding the TIP Report and, when applicable, broader issues related to human trafficking. We applied a set of criteria to each potential recommendation to determine if it should be included in this paper. As a result, our list of recommendations is consistent with our analysis and our goal to provide our client and the broader anti-trafficking community with an impartial analysis of the TIP Report and a set of realistic recommendations for how to enhance the Report’s impact. Accordingly, implementing each recommendation would improve the clarity, consistency, or transparency of the Report. Furthermore, we believe that each recommendation is both technically and politically feasible. First, as part of our process to determine whether the State Department and Congress could and would find our recommendations acceptable, we considered and compared our recommendations to the changes the State Department has already made to the Report. Second, because our client has had many discussions with State Department officials and is aware of the State Department’s interests and capacity, we consulted her often as we prepared this report in order to ensure technical feasibility of our recommendations. Third, we screened recommendation ideas during our interviews to ensure that each recommendation is feasible given the current political environment. Overall, each recommendation had to: •

avoid imposing major financial costs on the State Department,

•

avoid issues that are ideological along partisan lines, and

•

correspond with the TIP Report’s purpose of motivating foreign governments to increase their anti-trafficking efforts.

APPENDIX B: MINIMUM STANDARDS AND CRITERIA The State Department uses the following minimum standards to determine tier placements for all countries evaluated in the TIP Report. To determine whether countries comply with the fourth minimum standard, the State Department uses the ten criteria listed below the minimum standards. These minimum standards and criteria are written here exactly as they are enumerated in the Trafficking Victims Protection Act of 2000, as amended in 2003 (22 USC ยง 7106). Although the 2005 reauthorization of the TVPA amended some of the criteria, those amendments do not go into effect until 2007 and thus do not apply directly to this paper. The minimum standards and criteria listed below are those as they were amended by the 2003 TVPA reauthorization legislation, but not the 2005 reauthorization legislation. (A) Minimum standards U

For purposes of this chapter, the minimum standards for the elimination of trafficking applicable to the government of a country of origin, transit, or destination for a significant number of victims of severe forms of trafficking are the following: 1. The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking. 2. For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault. 3. For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense. 4. The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons. (B) Criteria U

In determinations under subsection (a)(4) of this section, the following factors should be considered as indicia of serious and sustained efforts to eliminate severe forms of trafficking in persons: 1. Whether the government of the country vigorously investigates and prosecutes acts of severe forms of trafficking in persons, and convicts and sentences persons responsible for

such acts, that take place wholly or partly within the territory of the country. After reasonable requests from the Department of State for data regarding investigations, prosecutions, convictions, and sentences, a government, which does not provide such data, consistent with the capacity of such government to obtain such data, shall be presumed not to have vigorously investigated, prosecuted, convicted or sentenced such acts. During the periods prior to the annual report submitted on June 1, 2004, and on June 1, 2005, and the periods afterwards until September 30 of each such year, the Secretary of State may disregard the presumption contained in the preceding sentence if the government has provided some data to the Department of State regarding such acts and the Secretary has determined that the government is making a good faith effort to collect such data. 2. Whether the government of the country protects victims of severe forms of trafficking in persons and encourages their assistance in the investigation and prosecution of such trafficking, including provisions for legal alternatives to their removal to countries in which they would face retribution or hardship, and ensures that victims are not inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts as a direct result of being trafficked. 3. Whether the government of the country has adopted measures to prevent severe forms of trafficking in persons, such as measures to inform and educate the public, including potential victims, about the causes and consequences of severe forms of trafficking in persons. 4. Whether the government of the country cooperates with other governments in the investigation and prosecution of severe forms of trafficking in persons. 5. Whether the government of the country extradites persons charged with acts of severe forms of trafficking in persons on substantially the same terms and to substantially the same extent as persons charged with other serious crimes (or, to the extent such extradition would be inconsistent with the laws of such country or with international agreements to which the country is a party, whether the government is taking all appropriate measures to modify or replace such laws and treaties so as to permit such extradition). 6. Whether the government of the country monitors immigration and emigration patterns for evidence of severe forms of trafficking in persons and whether law enforcement agencies of the country respond to any such evidence in a manner that is consistent with the vigorous investigation and prosecution of acts of such trafficking, as well as with the protection of human rights of victims and the internationally recognized human right to leave any country, including oneâ&#x20AC;&#x2122;s own, and to return to one's own country. 7. Whether the government of the country vigorously investigates, prosecutes, convicts, and sentences public officials who participate in or facilitate severe forms of trafficking in persons, and takes all appropriate measures against officials who condone such trafficking. After reasonable requests from the Department of State for data regarding

such investigations, prosecutions, convictions, and sentences, a government which does not provide such data consistent with its resources shall be presumed not to have vigorously investigated, prosecuted, convicted, or sentenced such acts. During the periods prior to the annual report submitted on June 1, 2004, and on June 1, 2005, and the periods afterwards until September 30 of each such year, the Secretary of State may disregard the presumption contained in the preceding sentence if the government has provided some data to the Department of State regarding such acts and the Secretary has determined that the government is making a good faith effort to collect such data. 8. Whether the percentage of victims of severe forms of trafficking in the country that are non-citizens of such countries is insignificant. 9. Whether the government of the country, consistent with the capacity of such government, systematically monitors its efforts to satisfy the criteria described in paragraphs (1) through (8) and makes available publicly a periodic assessment of such efforts. 10. Whether the government of the country achieves appreciable progress in eliminating severe forms of trafficking when compared to the assessment in the previous year.

APPENDIX C: TIER DETERMINATIONS IN THE 2005 TIP REPORT The following tier determinations are as listed in the 2005 TIP Report. They have not been changed to reflect the Presidential Determinations or the interim report issued between the 2005 and 2006 Reports. TIER 1 AUSTRALIA AUSTRIA BELGIUM CANADA COLOMBIA CZECH REPUBLIC DENMARK TIER 2

NEPAL THE NETHERLANDS NEW ZEALAND NORWAY POLAND PORTUGAL SOUTH KOREA

FRANCE GERMANY HONG KONG ITALY LITHUANIA LUXEMBOURG MOROCCO

SPAIN SWEDEN UNITED KINGDOM

TIER 2 AFGHANISTAN ALBANIA ALGERIA ANGOLA ARGENTINA BANGLADESH BELARUS BOSNIA/HERZ. BRAZIL BULGARIA BURKINA FASO BURUNDI CHAD CHILE CONGO (DRC) COSTA RICA COTE D’IVOIRE CROATIA CYPRUS EAST TIMOR

EGYPT EL SALVADOR EQUATORIAL GUINEA ESTONIA ETHIOPIA FINLAND GABON GEORGIA GHANA GUATEMALA GUYANA HONDURAS HUNGARY INDONESIA IRAN ISRAEL JAPAN KAZAKHSTAN KENYA KYRGYZ REPUBLIC

LAOS LATVIA LEBANON LIBYA MACEDONIA MADAGASCAR MALAWI MALAYSIA MALI MAURITANIA MOLDOVA MONGOLIA MOZAMBIQUE NIGERIA OMAN PAKISTAN PANAMA PARAGUAY PERU ROMANIA

SENEGAL SERBIA-MONTENEGRO SINGAPORE SLOVENIA SRI LANKA SWITZERLAND SYRIA TAIWAN TAJIKISTAN TANZANIA THAILAND TURKEY UGANDA URUGUAY VIETNAM YEMEN ZAMBIA

TIER 2 WATCH LIST

TIER 2 WATCH LIST ARMENIA AZERBAIJAN BAHRAIN BELIZE BENIN CAMEROON CHINA (PRC)

DOMINICAN REP. THE GAMBIA GREECE GUINEA HAITI INDIA MAURITIUS

MEXICO NICARAGUA NIGER PHILIPPINES RUSSIA RWANDA SIERRA LEONE

SLOVAK REPUBLIC SOUTH AFRICA SURINAME UKRAINE UZBEKISTAN ZIMBABWE

TIER 3 TIER 3 BOLIVIA BURMA CAMBODIA CUBA

ECUADOR JAMAICA KUWAIT NORTH KOREA

QATAR SAUDI ARABIA SUDAN

TOGO UNITED ARAB EMIRATES VENEZUELA

Appendix D: The State Departmentâ&#x20AC;&#x2122;s NGO Questionnaire Every year the State Department administers the following questionnaire to NGOs throughout the world in order to collect information about human trafficking and foreign governmentsâ&#x20AC;&#x2122; antitrafficking efforts. Human Trafficking Questionnaire U

Information provided by: (please provide organization name) concerning human trafficking from March 1, 2005 to March 1, 2006 Note: This questionnaire is long and comprehensive, so please only respond to questions you feel you can answer from professional experience. Moreover, please indicate if you prefer to be treated as a confidential source. We appreciate your help! PLEASE NOTE THE COUNTRY(IES) CONCERNED: General/Law Enforcement 1. Have trafficking routes or methods changed in the past 12 months? For example: Do victims come from new countries and is internal trafficking an increasing problem? Has trafficking changed from brothels to private apartments and escort services? Is labor trafficking on the rise? Has labor trafficking moved to supply additional types of industries or agricultural operations? Is the country increasing as a source, transit or destination country compared to last year, etc.? 2. Has the government organization for combating trafficking in persons changed in the past year? We are interested in substantive criminal laws and procedures, mechanisms for civil remedies, witness protection in court proceedings and witness security outside of courts. If yes, please give the text of the law in your answer or provide an appropriate Internet address. 3. What is your observation regarding the implementation of existing laws and procedures? Please provide specific examples if relevant. 4. If a country has adopted a law that punishes trafficking in persons, what levels of punishment did it concretely institute since March 2005 against human traffickers? If committed in respect to minors or in the sexual exploitation of children, did courts apply more severe punishment? Please answer with specific cases if possible. 5. What punishment was applied for rape cases since March 2005? Were civil remedies available? (The TVPA requires us to report whether or not sex trafficking sentences are commensurate with sentences for rape). 35

6. Can you say that the anti-trafficking laws in the country concerned are strict enough to reflect the nature of the crime? 7. Did the police pursue human trafficking cases with respect to organized crime in the past 12 months? Does pursuing a case as organized crime give law enforcement special powers of investigation or witness protection? 8. Do police actively profile traffickers? Please explain how you know this information. 9. Is government as vigorous in pursuing those who are involved in forced labor trafficking as sex traffickers? 10. Does the government investigate cases of trafficking in humans committed by government officials? If yes, have any government officials been subject to an investigation or criminal proceeding concerning trafficking in human beings? Have those officials been subject to criminal or professional sanctions? Please explain your source of information about this (personal contacts, media, assistance to victims in the case, etc.) Victim Assistance and Protection 11. Do you have a role in assisting victims or providing services? If so, do you actively share information with police and prosecutors regarding traffickers, victims and routes? Do police and prosecutors seek out and/or use your information? What is the level of cooperation, communication and trust between your organization and law enforcement? 12. Does government have methods to protect victims of trafficking? Are those methods regularly used? How? 13. Does government actively assist victims to return home? Does it assist victims in third countries to resettle there? Please explain through specific examples or cases. 14. How could methods of victim protection and implementation be improved? 15. Does the government support victims of trafficking? For example, do they provide referrals to NGOs, have victim advocates, and offer legal, medical or financial assistance? 16. Does the government provide housing to rescued victims of trafficking whose security is at risk? 17. Does the government detain victims of trafficking or keep them in prison? 18. Do you know of cases where the government punished victims for forgery of documents, illegal crossing of borders or illegal work? 19. Is the governmental attitude and treatment toward victims of trafficking equal for all victims regardless of circumstance, i.e. forced prostitution or labor? 20. Does the government make efforts to screen illegal foreign workers, before deporting them, to determine whether they are trafficking victims? 21. Are shelter programs equipped to provide services to victims of both labor and sex trafficking?

Prevention of Trafficking 22. Does the government address the prevention of human trafficking? Does it provide financial support to NGOs working to promote public awareness or does the government implement such campaigns itself? 23. Are public awareness campaigns directed at potential victims? Are they directed at reducing demand by changing attitudes of society? If so, how? 24. Do government officials with whom your organization interacts understand the nature of trafficking? If not, can you provide examples of misconceptions or misunderstanding related to trafficking in persons, particularly those that might affect the governmentâ&#x20AC;&#x2122;s effectiveness at detecting and combating human trafficking? 25. Does prevention include protection against criminal acts and prevention against vulnerabilities that create victims (poverty, domestic violence, unemployment, poor schooling, discrimination against women, children or minorities, etc.)? 26. Does government interact with other governments to facilitate criminal proceedings of trafficking cases and punish traffickers and their accomplices? 27. Does government monitor cases of immigration and emigration to identify trafficking in persons? If yes, please explain through specific instances. 28. Has the government made efforts to train health care professionals, labor and immigration inspectors, and other law enforcement officers to identify potential trafficking victims? 29. Please provide comment on any experiences with trafficking not already addressed. We also encourage you to share some specific victim stories, as long as names and identities are protected. Health-related Issues 30. Is the government providing any medical assistance to victims of trafficking? If so, at what stage in the victimâ&#x20AC;&#x2122;s experience? For example, after a brothel raid, when a victim is repatriated, when a victim is in a shelter or detention awaiting repatriation, or in a victim shelter after repatriation? 31. What type of care is provided? (Please explain whether the government or an NGO provides services.) For example, emergency medical for acute illnesses or complaints; psychological evaluation and assistance; long-term care; etc. 32. Are victims screened for HIV/AIDS status? Are they provided some kind of informed consent or counseling? What is the government doing with HIV+ victims? Is care provided? Are they immediately repatriated or not allowed to re-enter the country of origin? 33. Is the government supporting health awareness and prevention programs related to the demand side of trafficking? For example: awareness campaigns against commercial sex tourism, the demand for trafficking, and the health risks associated with commercial sex, and for condom use, safe sex, and abstinence.

34. Are there campaigns against myths related to HIV transmission such as â&#x20AC;&#x153;sex with a virgin will cure AIDSâ&#x20AC;? or other related activities that fuel the trade in sexual exploitation of children? Describe any activities that the government is supporting whether directly or through NGOs that address the spread of HIV/AIDS as it relates to trafficking in persons. 35. Is there stigmatization against victims of sexual exploitation by the health professionals in the community? 36. In light of current activity, what could the government do to support the mental and medical health of victims of trafficking? What are the limitations or constraints as to why such activities are not being accomplished?

APPENDIX E: SAMPLE COUNTRY ASSESSMENT The following text provides an example of a 2005 TIP Report country assessment. Excerpted from the TIP Report 2005, 225-226.

VENEZUELA (TIER 3) U

Venezuela is a source, transit, and destination country for women and children trafficked for the purposes of sexual exploitation and forced labor. Women and children from countries in the region such as Colombia, Guyana, Brazil, Peru, Ecuador, and the Dominican Republic are trafficked to and through Venezuela and subjected to commercial sexual exploitation. Venezuelans are trafficked internally â&#x20AC;&#x201D; typically moving from rural to urban areas â&#x20AC;&#x201D; and to Western Europe, particularly Spain, and countries such as Mexico and Trinidad and Tobago, for commercial sexual exploitation. Traffickers lure victims with promises of lucrative jobs or educational opportunities and take advantage of lax border controls or move victims using illegally obtained Venezuelan or false travel documents. Venezuelan children in border areas risk trafficking to mining camps in Guyana for sexual exploitation, or forced soldiering or sexual exploitation by Colombian armed insurgent groups. Venezuela is a transit country for illegal migrants, including Chinese nationals; some are believed to be trafficking victims. The Government of Venezuela does not fully comply with the minimum standards for the elimination of trafficking and is not making significant efforts to do so. The government has devoted insufficient attention and resources to combating human trafficking. It should strengthen law enforcement efforts, educate the public, and develop protection mechanisms for trafficking victims. Prosecution Efforts to address trafficking-related crime remained inadequate during the past year. The Naturalization and Immigration Law passed in 2004 contained provisions that could be used to prosecute transnational trafficking crimes. Other laws, such as the Child Protection Act and various articles of the penal code, could also be used to prosecute traffickers. However, there were no reported arrests related to commercial sexual exploitation of minors and no trafficking cases were prosecuted during the reporting period. The Criminal Investigative Police (CICPC) worked with Interpol on three cases of trafficking of women and girls for commercial sexual exploitation to Mexico, Trinidad and Tobago, and Spain. Police and intelligence forces arrested two suspected alien smugglers in a case with possible trafficking implications. Although there was no evidence that the government participated in or condoned human trafficking, corruption among immigration, identification, and border patrol officials is widespread and could facilitate trafficking.

Protection The government provided no specialized assistance for trafficking victims during the reporting period and funded no NGO programs geared toward victims of trafficking. Authorities assisted in the repatriation of four Venezuelan victims. In theory, victims could seek civil action against their traffickers, but laws made no provision for victim restitution. Prevention The government launched no anti-trafficking public awareness campaign and prevention efforts were inadequate throughout the year. There were no attempts to study the extent of trafficking within the country. In the absence of government action to educate the public about the dangers of trafficking, most of Venezuelan society remained uninformed about the issue. Some government officials were aware of trafficking as an international problem and acknowledged the problem in Venezuela. The government activated an interdepartmental anti-trafficking working group, led by the Ministry of Interior and Justice, that designed a National Plan of Action and tasked each agency in the working group with creating its own anti-trafficking training and programs. The Ministry of Foreign Affairs hosted IOM and the Organization of American States for anti-trafficking workshops in January 2005 to raise public officialsâ&#x20AC;&#x2122; and NGOsâ&#x20AC;&#x2122; awareness of the problem. Consulates were tasked to report on Venezuelan trafficking victims but had received no previous training regarding the issue.

APPENDIX F: THE CASE OF VENEZUELA Venezuela provides one of the most dramatic examples of the close relationship between the TIP Report’s credibility and its capacity as a diplomatic tool capable of influencing foreign governments’ anti-trafficking efforts. The State Department placed Venezuela in Tier 3 in 2004 and 2005, despite apparent efforts to combat trafficking, and many suspect the tier placement was related to or impacted by the country’s adversarial relationship to the U.S. Indeed, the two governments do not get along well with each other: Venezuelan President Hugo Chávez has been described as “a left-winger vehemently opposed to Washington's foreign policies” (Associated Press 2004), and Chávez has called President Bush a “burro” and a “coward” (BBC Monitoring International Reports 2006). The Venezuelan government, with support from some in the international community, has dismissed the findings presented in the TIP Report. When the Report placed Venezuela in Tier 3 for the first time in 2004, the government issued a communiqué denouncing the decision, and the country’s National Assembly Deputy Saul Ortega stated, “…it seems clear to us that Venezuela’s placement on this list is a result of base political motives” (quoted in Gindin 2005). Several NGO leaders and anti-trafficking advocates support the Venezuelan government’s decision to dismiss its tier placement in the TIP Report. Mark Weisbrot, co-director of the Center for Economic and Policy Research, agrees that Venezuela’s tier placement was politically motivated (Gindin 2005). Larry Birns, director of the Council on Hemispheric Affairs, believes that “[U.S. officials] use these reports as a political tool to reward their friends and punish their enemies” (Gindin 2005). Criticisms such as these show that that many people believe that Venezuela’s tier placement was influenced by factors unrelated to the government’s anti-trafficking activities. Such accusations undermine the capacity of the Report to influence the Venezuelan government to take further steps against human trafficking. The Venezuelan government and many TIP Report critics identify bias as a serious problem with both the assessment of Venezuela and the State Department’s decision to place Venezuela in Tier 3 in 2004 (Chuang interview, 2006). The U.S. decision to impose “partial sanctions”13 on Venezuela on the basis of its 2004 and 2005 Tier 3 placements has been particularly controversial and largely explains critics’ focus on the assessment of Venezuela (Chuang interview, 2006). Although this paper addresses the issues of bias and quality of information rather than the issue of sanctions, the clarity, consistency, and transparency of the country assessments and tier determinations link directly to whether extraneous political concerns affect sanction decisions. In particular, the assessment of Venezuela both applies TVPA criteria TP

In his September Presidential Determination, President Bush mandated that the U.S. would not “provide certain funding for [Venezuela’s] government for fiscal year 2006, until such government complies with the minimum standards or makes significant efforts to bring itself into compliance, as may be determined by the Secretary of State in a report to the Congress pursuant to section 110(b) of the Act” (White House Office of the Press Secretary 2005), Because of this determination, the U.S. may limit the funds it provides to Venezuela to only those that provide for basic human needs or that would improve the government’s ability to fight trafficking. PT

inconsistently compared to other country assessments and lacks citations for information to which the anti-trafficking community does not have access. Criteria are applied inconsistently and unclearly in TIP Report assessments of Venezuela. The assessments of Venezuela in each TIP Report call into question the consistent, unbiased use of the minimum standards and criteria listed in the TVPA. For example, assessments of Venezuela do not clarify how the State Department applies or weights the minimum standards and criteria stipulated in the TVPA. While the country assessment in 2004 acknowledged many positive efforts the country was making, it appeared to have no influence on the tier determination. When the State Department placed Venezuela in Tier 3 that year, the TIP Report stated that the Venezuelan government’s anti-trafficking efforts included: signing an antitrafficking border agreement with Brazil in 2003; drafting its first anti-trafficking legislation; decreasing the number of automatic deportations of undocumented individuals along with increased cooperation with the Office of the U.N. High Commissioner for Refugees in Caracas; and removing “immigration officials involved in human smuggling, which often can be linked to human trafficking” (TIP Report 2004, 248). The 2005 TIP Report pointed to further efforts, including a new law “that could be used to prosecute transnational trafficking crimes” and increased cooperation with international efforts to fight trafficking (see Appendix D for the full assessment of Venezuela in the 2005 TIP Report). Neither assessment explains why these are not “significant” efforts to bring Venezuela into compliance with the TVPA minimum standards and criteria, which would have placed the country on the Tier 2 Watch List or higher. U

The TIP Report’s assessment of Venezuela lacks citations for factual or refutable statements. In the case of Venezuela, where experts on trafficking in Latin America have been unable to identify NGOs that focus on combating forms of trafficking other than sex trafficking (Langberg interview, 2006), a lack of citations is particularly damaging to the credibility of the TIP Report. To further complicate the process of collecting information for the TIP Report, the U.S. has an antagonistic relationship with the Venezuelan government, and Venezuelan government officials may be unwilling to provide the State Department with full information about their antitrafficking activities. With limited NGO input and little or no government input, the TIP Report is unlikely to reflect accurately either Venezuela’s trafficking situation or the Venezuelan government’s anti-trafficking efforts. If the State Department consulted a sufficient array of information sources in Venezuela, disclosing those sources would help to allay skepticism toward both the Report’s assessment and the State Department’s decision to place Venezuela in Tier 3. U

The TIP Report’s assessment of Venezuela does not consider effectiveness of anti-trafficking laws and programs. Despite the Venezuelan government’s several anti-trafficking efforts mentioned in the assessments in both the 2004 and 2005 TIP Reports, the State Department has placed the country in Tier 3 in both years. If Venezuela truly merits a Tier 3 placement, then describing the ineffectiveness of its laws or programs would strengthen the credibility of Venezuela’s assessments and tier determinations. U

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