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ABSTRACT
This paper looks at the recruitment process of Bangladeshi migrant workers for employment in the Gulf States through the legal framework of human trafficking. The migrant workers are recruited through a complex process by various recruitment actors which include private recruitment agents, brokers, and social networks. This paper argues that because of harmful recruitment practices, many Bangladeshi workers are often deceived and become victims of human trafficking for labor exploitation under the Prevention and Suppression of Human Trafficking Act, 2012 of Bangladesh as well as the United Nations Trafficking Protocol. Some recruitment actors in Bangladesh deceive the prospective workers during recruitment for the purpose of exploitation or with the knowledge that the workers would face exploitative consequences. The study is significant in several respects; first, it links the recruitment process of migrant workers in the origin state with human trafficking though it is commonly associated with exploitation in the destination. Second, it reveals the prevalence of the crime in apparently regular/legal migration channel where potential victims go through formal procedures. Finally, and most importantly, it contributes to the legal analysis of mens rea element which is a crucial factor in establishing human trafficking as a criminal offence.
Notes
1. Gulf or Arab Gulf or Gulf Cooperation Council (GCC) States are Kuwait, Bahrain, Oman, Qatar, Saudi Arabia, and the United Arab Emirates (UAE). GCC States are particularly well known for oil-resource and high dependency on migrant workers. These states are also termed together as the ‘Middle East’ in some literature though the Middle East is broader than the GCC. Here, I use those terms interchangeably. GCC countries prefer to use the term ‘temporary contract labourer’ rather than migrant worker.
2. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003) (‘TIP Protocol’).
3. Prevention and Suppression of Human Trafficking Act, 2012 (Bangladesh). (‘PSHT Act’).
4. Bureau of Manpower, Employment and Training (BMET), http://www.bmet.gov.bd/BMET/stattisticalDataAction.
5. With reservation on para 3 of art 35.
6. United Nations Office on Drugs and Crime (UNODC), What is Human Trafficking? <http://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html>.
7. Abuse of socio-economic or environmental vulnerability is an important difference with the TIP Protocol which only mentions ‘abuse of … a position of vulnerability’ without further explanation. This provision both enlarges and weakens the scope of the trafficking regime in Bangladesh. In a sense, it is the acknowledgement of the inferior position of victims and potential victims in contrast to alleged traffickers. For instance, the recruiters have far superior social, economic, and political position than the migrant workers. On the other hand, the provision is too inclusive to generate policy and administrative support from regulators and law enforcers. Environmental vulnerability perhaps has come from the fact that Bangladesh is in a highly vulnerable position because of climate change and many Bangladeshi people frequently experience natural disasters such as river erosion, cyclones, and floods.
8. Overseas Employment and Migrants Act 2013 (Bangladesh) s 2 (15) (‘Migrants Act’).
9. Convention to Suppress the Slave Trade and Slavery, Opened for signature 25 September 1926, 60 LNTS 253, (entered into force 19 March 1927); Convention Concerning Forced and Compulsory Labour, Opened for signature 28 June 1930, 39 UNTS 55, ILO No. 29 (entered into force 1 May 1932); Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Opened for signature 7 September 1956, 266 UNTS 3 (entered into force 30 April 1957).
10. TIP Protocol art 5 (1).
11. 25 Cal 512 (FB), 5 Cal WN 897 (DB), 28 Mad 90 (FB), AIR 1926 Mad 1072 (DB), AIR 1949 All 353 (DB) cited in Dhaka Law Reports (Citation2003).
12. PSHT Act art (3) Explanation.
13. ‘To intend is to have in mind a fixed purpose to reach a desired objective’ (Turner, Citation1966; cited in Badar, Citation2013: 34; Smith & Hogan, Citation1988; cited in Chantry, Citation1991).
14. Mehedi Hasan v. State (Citation2014).
15. Bureau of Manpower, Employment and Training (BMET), Bangladesh. Retrieved from http://www.bmet.gov.bd/BMET/raHomeAction.
16. Migrants Act art 9 (1).
17. Most of the RAs also seemed uncomfortable while talking on this issue.
18. Interview with a Recruiting Agency (RA) (Dhaka, 30 August 2015).
19. Gulf News, 13 April 2004. Cited in Shah (Citation2009: 13).
20. Arab News, 29 April 2004.Cited in Shah (Citation2009: 13).
21. Interview with an NGO working for the rights of migrant workers (Dhaka, 2 September 2015).
22. Interview with a former RA employee (Dhaka, 13 August 2015).
23. Interview with a RA (Chittagong, 30 November 2015).
24. Interview with a RA (Dhaka, 30 August 2015).
25. Interview with an NGO working for the rights of migrant workers (Dhaka, 2 September 2015).
26. Interview with an NGO working for the rights of migrant workers (Dhaka, 2 September 2015) and Interview with a former recruitment agent (RA) employee (Dhaka, 13 August 2015).
27. Migrants Act ss 22, 26.
28. Interview with a RA (Chittagong, 15 November 2015).