Abandoned on board

A fleet of vessels was arrested in South Africa for fishing illegally in 2013, the vessels were seized by the Department of Agriculture, Forestry and Fisheries (DAFF) under non-compliance to South Africa’s Living Marine Resources Act. A detention notice was issued and the vessels were detained in Cape Town. On board were 75 crew members who, though under arrest, were entitled to stay on the boats until a court decision was made on the vessels.

Alan Goldberg, a commercial and maritime lawyer with Alan Goldberg and Associates, was brought in to assist the International Transport Workers Federation inspector to secure the claims of the crew and to establish any issues they might have.  ‘My impression was that the crew were traumatised, suffering from post traumatic stress,’ Alan explains. ‘Some had not been home for a number of years, and there were concerns that money lenders would begin calling up loans from their families at home in Indonesia.’

For two months the crew were left on the vessels as conditions on board deteriorated: abandoned by their company who absolved all responsibility, and their travel documents seized by the Department of Home Affairs the crew were unable to move.

Cassiem Augustus, an ITF inspector for 20 years describes the difficulties faced by the crew as they were stuck in a legal no mans land. ‘Myself, my wife and organisations like the Missions to Seafarers, churches and NGO’s had to step in because no one was taking responsibility for these fishers. They couldn’t leave the vessels. They were sleeping in small bunks, some of the guys tucked into the engine room just because there was no space. They were like floating shantytowns.’

‘They didn’t know if they could even drink the water because as it was being pumped out the boat suddenly oil would appear due to oil contamination. People that were supplying electricity to the boats were owed money so they stopped the electricity, the same with the people providing water. So we had to start providing water and food for them, feeding the fishers every day with donations. It was only after we started making noise in the media, then suddenly immigration started to react.’

How does trafficking occur?

According to the International Labour Office (ILO) the fisheries sector counts amongst some of the most important economic sectors providing food security and employment worldwide. The ILO estimate that around 90 per cent of today’s forced labour is extracted by private agents, primarily in labour intensive industries such as manufacturing, fishing, agriculture and food processing, domestic work and construction. Over fishing, illegal fishing and declining fish stocks have led to a number of changes including a shift to sourcing the workforce from developing States, meaning that more low cost migrant workers are employed by the fisheries sector. Lack of training, inadequate language skills and lack of enforcement of safety and labour standards make these fishers particularly vulnerable to forced labour and human trafficking. There are also strong indicators that forced labour and human trafficking in the fisheries sector are frequently linked to other forms of crime, such as transnational organised fisheries crime and corruption.

The trafficking of human beings is defined by the United Nations Protocol to Prevent, Suppress and Punish Trafficking Persons as: the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

Identification of trafficking victims

Trying to identify the fishers as victims of trafficking is problematic. Many of these fishers would not readily identify themselves as victims of trafficking due to the stigma attached to being a victim of trafficking and the possibility of not finding work again through the same company if they speak out. To establish whether forced labour and trafficking has occurred is equally complicated. The capacity to screen and interview the fishers onboard the vessels to establish if coercive and deceptive labour practices have occurred is crucial, and it appears that the capacity for this is slight within the fishing industry.

Two conventions outline the rights of seafarers. The Maritime Labour Convention details a comprehensive rights and protection at work for seafarers, but unfortunately it only offers legal protection to seafarers and not fishers and the convention is voluntary so not every state will adhere to it. The Working In Fisheries Convention (ILO C188) outlines critical protections needed by fishers but is, as yet, not fully enforced. Unfortunately for the fishers that landed up in the Cape Town harbor in 2013 they did not have the active enforcement of the WIF convention to steer authorities in the right direction when it comes to identifying and dealing with potential victims of trafficking and the rights they are afforded.

Repatriation

After two months stranded at port the Department of Home Affairs released the fishers documents, but the problem still remained that none of the crew had air tickets to go home. The authorities agreed to repatriate the crew but they would need to go through the Lindela processing camp before this could occur. Conditions at Lindela have been described as atrocious and in 2014 the South African Human Rights Commission detailed conditions at the camp where there is a, “lack of provision for TB testing and isolation of infected persons, and psychological care; overcrowding in rooms; and time intervals between the serving of the evening meal and breakfast not complying with the time-periods prescribed in the Regulations to the Immigration Act at Lindela.”

Alan Goldberg tried to challenge the decision to move the crew to Lindela ‘the crew were legally allowed to remain on the vessels as they were not illegal, but I could not get a judge in time so the fishers were simply bussed off to Lindela, literally with nothing but a black plastic bags of goods, their laundry was still hanging on the line of the ship.’

When the crew were eventually repatriated back to Indonesia they were chained together on the plane and chained to the armrest, even though they had the right to be on the vessels and were repatriated with South Africa bearing the cost.

Rebecca Surtees a senior researcher at the NEXUS Institute, a leader in research, analysis and evaluation in the field of human rights, specializing in human trafficking and related issues commented that ‘putting these men in Lindela for months and months should not happen in a trafficking case, they should be screened for trafficking before that. If the authorities in the port don’t have the knowledge to screen them there are organisations that do, and those organisations should be able to recognized signals of exploitation.’

‘The South African anti-trafficking law is good; there are options for temporary residence permits and provisions for victim assistance. Whether the state has adequate funds available for this assistance is another question. Anti-trafficking assistance in South Africa is needed to make sure that these men are not kept on vessels in poor conditions and then deported.’

‘Trafficking victims should not be criminalized for crimes they are forced to commit while trafficked. The fact that they were detained and deported is a huge concern. But another issue is resources. How do you pay for 75 men to return home, it could become enormously expensive?’

‘At the end of the day these people are victims of crime, and they have certain rights. They need certain protections and assistance and they are entitled to them and this is an international and national obligation.’