Mapping

HKS755

Case Number 1991.0

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United States and Thailand: Diplomatic Wrangles in the War on Human Trafficking

Introduction

Shortly after midnight on February 16, 2011, a police team raided a karaoke bar in Chiang Mai, a popular tour-

ist destination in northern Thailand. Based on reports that the karaoke bar was harboring young girls for prostitu-

tion, the 50-member police team charged into the building, commandeered the premises and captured everyone

inside. 1 The same night, at a hotel nearby, undercover police officers apprehended five more female employees of

the karaoke bar after they had agreed to paid sex. The operation rescued thirteen women including three girls un-

der the age of eighteen. The karaoke bar’s manager and several other male employees, also caught in the sweep,

were charged with human trafficking and procuring sexual services.

Thailand had been a major human trafficking hotspot for decades. According to the U.S. State Department,

Thailand was a “source, transit and destination for men, women, and children trafficked for… forced labor and

commercial sexual exploitation.” 2 Migrants from countries like Myanmar, Cambodia and Laos made their way into

Thailand in search of better economic prospects. Many of them fell prey to vast, informal networks of traffickers

who led them, either through fraud or coercion, into abuse, exploitation, slavery and sometimes even death. While

migrant women from Myanmar, Cambodia, China, and as far as Uzbekistan, were commonly found serving in the

Thai sex industry, a significant number of people trafficked within or through Thailand—into neighboring Malaysia

and beyond—were ethnic minorities (called hill tribes) from rural parts of the country.

A year before the raid in Chiang Mai, Robert Griffiths (MPP 1982), Counselor for Economic Affairs at the U.S.

Embassy in Bangkok, braced himself for the possibility of serious diplomatic fallout. Griffiths was in charge of

providing the analysis on human trafficking in Thailand for the U.S. State Department’s annual Trafficking in Per-

sons report. Griffiths was acutely aware that the embassy’s account would play a key role in how the State De-

partment would perceive Thailand’s performance. Thailand was at risk of being put on a “watchlist” of countries

1 Description of raid adapted from Hit and Run: The Impact of Anti Trafficking Policy and Practice on Sex Workers’ Human Rights

in Thailand, Empower Foundation, 2012, pp. 74-9. 2 U.S. Department of State, “Trafficking in Persons Report,” June 2009, p. 279.

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HKS Case Program 2 of 14 Case Number 1991.0

making inadequate progress. For the Thai government, which took pride in its counter-trafficking efforts, such a

downgrade would constitute humiliation by a longtime friend. And for Griffiths, a senior representative of the U.S.

Foreign Service in Thailand, provoking the host government’s ire could imperil not only future collaboration

against human trafficking but also engagements on trade, intellectual property and security.

Global Trafficking in Persons: Definition and Estimates

Several million migrants, across the world, fled economic hardship, war, strife or oppression every year—

moving within their own country or illegally entering another. 3 According to the United Nations, migration slipped

into human trafficking when the vulnerabilities of migrants met force or fraud at the hands of traffickers. 4 Victims

of trafficking typically experienced a combination of physical and emotional abuse, threats against their families,

and confinement. Human trafficking took the form of forced labor, forced prostitution, bonded labor, debt-

bondage, domestic servitude and child labor.

In many parts of the world, trafficking flourished under hidden but well-established criminal networks. Not

surprisingly, calculating the precise number of people trafficked around the world had been notoriously difficult

and global estimates of the number of trafficking victims ranged widely. In 2010, the U.S. State Department calcu-

lated that more than 12 million people were trafficked both across and within borders. 5 A 2012 report by the In-

ternational Labor Organization (ILO) placed the total number of victims of all forms of trafficking at 21 million. Ac-

cording to the ILO report, nearly 70 percent of trafficking victims endured some kind of forced labor exploitation,

22 percent suffered forced sexual exploitation and the remainder toiled in state run factories or served in some

form of armed conflict. Women and girls made up the majority of victims; and the Asia Pacific region was home to

more than half the world’s trafficked persons. 6

Human trafficking resisted sustained efforts to curb it in large part because it was enormously lucrative. The

ILO estimated that global profits from trafficking in persons were approximately 32 billion dollars in 2008. 7 But ac-

cording to Siddharth Kara, Harvard University Fellow on Trafficking, worldwide “commercial exploitation of traf-

ficked sex slaves,” alone generated more than 51 billion dollars in 2007. 8

Career Foreign Service Officer

Griffiths had wanted to be part of the U.S. Foreign Service since he was a teenager. He first came to Thailand

in the 1970s as a Mormon missionary, learning to speak the language fluently. After receiving an undergraduate

degree from Brigham Young University and a Master in Public Policy from Harvard’s Kennedy School of Govern-

ment, Griffiths entered the U.S. Foreign Service and rose steadily through its ranks. In 1990, the one-time mission-

3 UNDP Human Development Report, “Overcoming Barriers: Human Mobility and Development,” 2009, p. 9.

4 For full U.N. definition of human trafficking, http://www.palermoprotocol.com/general/the-palermo-protocol, accessed Feb- ruary 13, 2013, Found under: Palermo Protocol, Definition. 5 U.S. Department of State, “Trafficking in Persons Report: Tenth Edition,” June 2010, p. 7.

6 International Labor Organization, “2012 Global Estimate of Forced Labor,” Executive Summary, p. 1.

7 ILO, “ILO Action Against Trafficking in Human Beings,” 2008 p. 1

8 Siddharth Kara, Sex Trafficking: Inside the Business of Modern Slavery, 2009, p. 19.

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HKS Case Program 3 of 14 Case Number 1991.0

ary returned to Thailand as a diplomat. For three years, at the height of the global “war on drugs,” he helped run

the U.S. narcotics affairs unit in Bangkok. In 1993, Griffiths was made Labor Affairs officer, and worked with the

Thai government on eradicating child labor and prostitution. “Thai society is very open and relaxed. The ability to

get information even on issues like child prostitution was easy,” he said. 9 Griffiths learned quickly that when it

came to urging reform in Thailand, pointing a finger was far less effective than extending a hand in cooperation.

“We could work much better with the Thai by saying ‘we would like to work together. We have this great concern.

We know that you are concerned as well. How can we help deal with this problem?’” This insight helped Griffiths

broker a successful U.S.-Thai campaign against child prostitution.

After a total of six years in Thailand, Griffiths was posted to China and Washington D.C. for more than a dec-

ade but returned to Bangkok in 2007 as Counselor for Economic Affairs, responsible for a much wider portfolio

than in his previous stint. In the intervening years, the country he knew so well had experienced a radical trans-

formation. “The economic development was dramatic,” Griffiths said, “the income of the Thai people had in-

creased tremendously. The level of education had increased. From their perspective, things were clearly better.”

The Kingdom of Thailand

A constitutional monarchy with a parliamentary system of government, Thailand began experiencing unprece-

dented economic growth in the 1990s. Unlike many of its Southeast Asian neighbors, Thailand rebounded quickly

from the Asian financial crisis in 1997-98. Often described as a “great development success story,” the country was

upgraded from lower to upper middle income status by the World Bank in 2011. 10

Between 2001 and 2011, Thai-

land doubled gross per capita national income and slashed the rate of poverty. 11

But as Thailand’s economy pros-

pered, the state of its neighbors to the north, west and east—Myanmar, Laos and Cambodia—remained precari-

ous. Myanmar languished under the grip of an increasingly oppressive dictatorship, while Laos and Cambodia could

not shake the burden of failed economic policies.

A series of events beginning in 2006, however, precipitated widespread unrest in Thailand and threatened to

shatter the country’s peace. Thai armed forces deposed Prime Minister Thaksin Shinawatra in a 2006 coup. The

subsequent years marked one of the longest bouts of political instability in the country. A wave of large scale, vio-

lent protests in 2009 (led at first by anti-Thaksin “yellow shirt” groups) and again in 2010 (by Thaksin “red shirt”

supporters), appeared to weaken the Thai economy and bring the vital tourism industry to a grinding halt. It was

during this tumultuous time that Griffiths served as Counselor for Economic Affairs at the U.S. Embassy in Bangkok.

9 All quotations attributed to Robert Griffiths were drawn from an interview conducted with the author on December 28, 2012.

10 World Bank Press Release, “Thailand Now an Upper Middle Income Economy,” August 2, 2011,

http://www.worldbank.org/en/news/press-release/2011/08/02/thailand-now-upper-middle-income-economy, accessed Janu- ary 3, 2012. 11

World Bank Thailand Overview, http://www.worldbank.org/en/country/thailand/overview, accessed January 3, 2012.

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HKS Case Program 4 of 14 Case Number 1991.0

A Longstanding Friendship

For nearly 200 years, the United States and Thailand had enjoyed an abiding friendship that had grown only

stronger in the early 2000s. Along with other allies in East Asia like Australia, Japan, South Korea and the Philip-

pines, Thailand, with its newfound regional clout, was of both economic and military importance to the U.S.

The security alliance between the U.S. and Thailand, first forged during the Korean and Vietnam wars, had ex-

panded under President George W. Bush. In 2003, the U.S. formally designated Thailand a major non-NATO ally.

Joining an elite group of only ten other countries at the time, this designation gave Thailand special privileges with

the U.S., including increased military aid and closer collaboration on defense research. In return, Thailand support-

ed U.S. reconstruction efforts in Iraq and Afghanistan and became a steadfast partner in the “war on terrorism.”

Despite the ongoing political unrest in Thailand, trade and economic ties between the two countries had con-

tinued to flourish in the late 2000s. The U.S. had long been one of Thailand’s biggest trading partners, export mar-

kets, and foreign direct investors. 12

At the start of Barack Obama’s Presidency, negotiations for a U.S.-Thai free

trade agreement had stalled but the new President viewed Thailand’s prominent role in the Association of South-

east Asian Nations (ASEAN) as a “crucial component” of his administration’s geopolitical vision in the region. 13

Even

U.S. concerns about Thailand’s political and economic engagement with Myanmar’s repressive military govern-

ment, once a point of contention between the two countries, relaxed when Myanmar’s government began to insti-

tute reforms.

But the carefully nurtured U.S.-Thai partnership showed signs of fraying on human rights issues. Throughout

the 1990s, the two countries had collaborated to dismantle an international network of trade in illicit drugs and

small arms. But in the early 2000s, the U.S. grew increasingly alarmed at the strong-arm tactics Prime Minister

Thaksin Shinawatra employed under the mantle of the “war on drugs.” Compounding the chaos, the Thai military

overthrew the Thaksin government in 2006. Bloody protests choked the streets of Bangkok in 2009 and 2010, fur-

ther calling into question, from the U.S. perspective, Thailand’s ability to protect democratic institutions. But per-

haps the most unexpected source of discord in U.S-Thai bilateral relations was the fight against human trafficking.

The United States, Global Sheriff on Trafficking

In 2000, United Nations member states had been engaged in a bitter debate over a new international law on

trafficking, known informally as the Palermo Protocol. 14

That same year the U.S. Congress passed into law one of

the most comprehensive pieces of domestic legislation against human trafficking in the world—the Trafficking Vic-

tims Protection Act (TVPA).

12

Congressional Research Service, “Thailand: Background and U.S. Relations,” June 5, 2012, p. 15. 13

Transcript of speech, “A Renewed U.S.-Thai Alliance for the 21 st

Century,” by William J. Burns, Under Secretary for Political Affairs at Chulalongkorn University, Bangkok, Thailand, July 16, 2010, http://www.state.gov/p/us/rm/2010/144774.htm, ac- cessed January 3, 2012. 14

Officially: the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children.

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HKS Case Program 5 of 14 Case Number 1991.0

The TVPA described trafficking as an “evil requiring concerted and vigorous action by countries of origin, trans-

it, or destination” and established a framework unique in its “global reach.” 15

In particular, the law gave the U.S.

government the authority to impose sanctions on countries that did not comply with the “minimum standards for

the elimination of trafficking.” 16

And it required the State Department to report annually on the state of interna-

tional human trafficking. The U.S. had, in effect, appointed itself the “global sheriff on trafficking,” to the alarm of

countries that accused the U.S. of imposing a unilateral definition of trafficking on the rest of the world. 17

Annual TIP Reports and Tier Placements

The annual Trafficking in Persons (TIP) report, issued by the State Department’s Office to Monitor and Combat

Trafficking in Persons, was arguably the most public component of the TVPA. Starting with the first report in 2001,

each TIP report assessed countries according to the TVPA’s three “Ps”: Prevention of trafficking in persons; Protec-

tion of trafficking victims; and Prosecution of traffickers.

In addition to the country assessments, the TIP report was required to rank countries in one of four tiers. Tier

1 countries fully complied with the minimum standards for anti-trafficking efforts stipulated in the American legis-

lation. Tier 2 countries did not fully comply with the standards but were making “significant efforts” to do so. Tier 3

countries neither complied with the standards nor were they trying. The fourth category, added later, was an in-

between status called the “Tier 2 Watchlist.” Countries on the watchlist faced any of three possible situations: a

rise in “severe forms of trafficking,” despite efforts to curtail them; no evidence that, in the previous year, there

had been an increase in efforts to combat trafficking; or the Tier 2 criterion of “significant efforts” had been de-

clared met only contingent on the government taking certain steps which it had failed to accomplish. 18

Watchlist countries would remain under the State Department’s close scrutiny. But if they were willing, their

governments could receive U.S. support to help make improvements. After two years on the watchlist, however, a

country would automatically drop to Tier 3 and face sanctions, unless the President issued a waiver based on the

government’s credible action plan for change.

The TIP reports and rankings were criticized on many fronts. In the initial years, the State Department was ac-

cused of “conflating trafficking with prostitution” and of not acknowledging the widespread problem of forced

labor. 19

The tier rankings drew attacks because of the United States’ failure, until 2010, to examine its own record

15

Janie Chuang, “The United States as Global Sheriff: Using Unilateral Sanctions to Combat Human Trafficking,” Michigan Jour- nal of International Law, Vol. 247, No. 2, 2006, pp. 437-94. 16

The minimum standards for the elimination of trafficking are divided into four sections. The first three minimum standards look at a nation’s legal framework to prohibit and adequately punish acts of trafficking, while the fourth standard, further di- vided into 11 criteria, is used to calibrate whether a country’s efforts are “serious and sustained.” The TVPA’s minimum stand- ards are similar to provisions in the Palermo Protocol. 17

Chuang, “The United States as Global Sheriff,” 2006. 18

Trafficking Victims Protection Reauthorization Act (TVPA 2003), Pub. L. No. 108–193, H.R. 2620. 19 Anne Gallagher, “Improving the Effectiveness of the International Law of Human Trafficking: A Vision for the Future of the US Trafficking in Persons Reports,” Human Rights Review, Vol. 12, 2011, pp. 381-400.

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HKS Case Program 6 of 14 Case Number 1991.0

on fighting trafficking in persons. And many critics charged that the grading process was largely subjective and too

reliant on unverifiable data to justify the sanctions it triggered.

Despite the criticisms—or perhaps because of them—the annual release of countries’ tier standings garnered

widespread attention. Mark Taylor, Senior Coordinator for Reports and Political Affairs at the Office to Monitor

and Combat Trafficking in Persons had overseen all the TIP reports since 2003. He believed that the reports “had

gained respect—in some cases grudging respect—as an index for trafficking around the world. There are plenty of

detractors out there, some of them have legitimate complaints and some don’t. I’ve seen people who normally

would not take kindly to a unilateral report like this and agree that it has produced reform. And we’ve evolved. I

wince at some of the analysis we did back in 2003 and 2004 when we didn’t have as mature an understanding of

victim care.” 20

As they compiled each year’s report, Taylor and his team used inputs from NGOs working within and across

countries, as well as studies from respected groups like Human Rights Watch. But the bulk of the information that

shaped the ratings in the TIP report came from U.S. embassies in the relevant countries. In 2010, Robert Griffiths

would have to manage the TIP submission for Thailand—a key ally—where the report was at once controversial

and influential.

Human Trafficking in Thailand

The promise of a better life typically attracted a flood of migrants from Myanmar, Cambodia and Laos into

Thailand. In 2007, an estimated 1.8 to 3 million migrants from Myanmar, Cambodia and Laos accounted for 5 to 10

percent of the Thai workforce. 21

Long stretches of porous borders and relatively lax immigration controls allowed

migrants easy entry into the country—but also left them vulnerable to trafficking by human smugglers. According

to a 2006 ILO report, “Thailand had emerged as the number one destination in the cross-border trafficking of chil-

dren and women,” in the greater Mekong sub-region. 22

Many observers noted the rampant exploitation of migrants working in Thailand. The gamut of abuse ranged

from being underpaid and having to work long hours to more egregious forms of forced labor and sexual slavery.

According to leading international rights watchdog, Human Rights Watch, “undocumented migrants… [were]

forced to work in factories, commercial sex establishments, fishing boats, and domestic service workers” under

“Thai employers who [compelled] them to work at jobs through use of threats, force, and physical confinement.” 23

20

All quotations attributed to Mark Taylor were drawn from an interview with the author on January 18, 2013. 21 Philip Martin, “The Contribution of Migrant Workers to Thailand: Towards Policy Development,” 2007, p. xi. 22 Elaine Pearson, “The Mekong Challenge-Underpaid, Overworked, and Overlooked: The Realities of Young Migrant Workers in Thailand,” (Volume 1), 2006, p. xvii. 23

Human Rights Watch, “From the Tiger to the Crocodile: Abuse of Migrant Workers in Thailand,” 2010, p. 52.

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HKS Case Program 7 of 14 Case Number 1991.0

Forced Labor

Phil Robertson, Deputy Director of Human Rights Watch’s Asia Division described one of the many ways a mi-

grant could become a victim of trafficking. 24

To move within Thailand as a migrant worker, you can’t just walk from the border to

Bangkok or get on a bus. There are various police check points. The migrants don’t

speak the language. They have probably never been to Thailand and will be deported if

they are caught by the police. Migrants going from a place like Mae Sot near the Thai-

Myanmar border down to the central plains in Bangkok are probably going to have to

hire a broker, or people smuggler to take them through. Those costs could be anywhere

from 12,000-15,000 Baht (approximately $400). Often, the migrant workers don’t have

the money. So it’s a ‘travel now, pay later’ kind of plan. The problem occurs when the

broker says, for instance, ‘I will transfer you to Samut Sakhon,’ a province with a major

food processing (particularly sea food) industry, ‘for a certain amount of money and I

will arrange for you to get a job. When you get the job, your salary will be deducted to

pay me back.’ But the people smugglers are essentially selling the migrants to the facto-

ries. The migrants incur the debt which is deducted from their salaries and end up in

bonded labor situations. Sometimes the owners put locks on doors or they have facto-

ries ringed with barbed wire and armed guards. People are forced to work 18 to 20

hours a day, not making any money. Essentially, they are in forced labor prison—a hu-

man trafficking situation.

Sex Trafficking

The path to sex trafficking for vulnerable migrant women and girls traced a similar arc. “Some women know

what they are getting in to, they do it voluntarily. Although they might lose control or they might see that they

weren’t expecting to be detained. Others might have been promised waitressing jobs but ended up in trafficking

situations,” explained Robertson.

Unlike in other countries, commercial sex work in Thailand was not shrouded in secrecy. Although prostitution

was deemed illegal, entertainment venues like karaoke bars, massage parlors and night clubs were common fronts

for the sale of sexual services. The Thai anti-prostitution law of 1996 drew a significant distinction between adult

sex work and sexual services provided by a minor. Women over the age of 18 could be fined a nominal amount for

engaging in prostitution but the criminal penalties for both procuring and buying sex from a minor were severe. 25

By the time Robert Griffiths returned to Thailand, and was tasked with assessing its anti-trafficking efforts,

other factors had significantly compounded the challenge of preventing sex trafficking in the country. Increasing

numbers of women in the sex industry were from Myanmar and other neighboring countries. Economic hardship

24

All quotations attributed to Phil Robertson were drawn from an interview with the author on December 22, 2012. 25

Global Alliance Against Trafficking in Women, “Collateral Damage: The Impact of Anti Trafficking Measures on Human Rights Around the World,” 2007, p. 179.

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HKS Case Program 8 of 14 Case Number 1991.0

and security concerns often drove these women out of their homelands into Thailand, and sex work was typically

their most lucrative option. Whether a woman or young girl arrived voluntarily or was coerced into sex work was

inordinately difficult to determine. If an adult migrant woman was apprehended by the police she would most like-

ly be deported. For these victims, fear of losing income—which often supported entire families back home—was

incentive enough to not report abuse or seek help. In these circumstances, raid and rescue exercises like the one in

Chiang Mai had mixed results. 26

Chiang Mai Raid and Rescue Revisited

All except one of the thirteen women apprehended at the Chiang Mai karaoke bar had crossed the border

from Myanmar (the lone Thai sex worker was charged a fine and quickly released). In accordance with Thailand’s

2008 Anti-Trafficking Act, the fate of the others differed according to their ages. The underage Burmese girls were

transferred to a government shelter for victims of trafficking. The older Burmese women were detained in a spe-

cial Chiang Mai police cell, to serve as witnesses for the prosecution in the trial against the owner and associates of

the karaoke bar.

“When a brothel raid takes place, the Thai police operate like a big sticky ball. They just round up everybody.

The police are not as effective at separating people and identifying who is the victim and who is not. If the police

are working with certain NGOs, they are sometimes better at knowing what to do,” explained Robertson.

According to Ben Svasti, Executive Director of TRAFCORD, the NGO that had worked with police to conduct the

Chiang Mai raid, “when a raid takes place, it's very hard to stop chaos from erupting. Our job as social workers is to

identify victims and provide them with immediate protection. We have the police there, who are obviously out to

catch criminals. So as soon as the police storm in, someone inevitably turns the lights off. People are trying to es-

cape. They are panicking. We are trying to identify the victims that we know are there. It's very hard.” 27

A month after the raid, in March 2011, the women testified in court. All of them maintained that they had not

been trafficked and that they had been working at the karaoke bar voluntarily. Whether some or all of the women

and young girls had been trafficked into sex work would never be known, but they had important motives not to

implicate their employer. Victims typically languished for months, sometimes years, in Thai government shelters—

either waiting to testify against their traffickers in an over-burdened court system or waiting for their families to be

traced in their home countries. “It is common to see migrants go to shelters for very long periods before being

deported. But those migrants who claim to be voluntary and over 18 are deported in a few days.” Svasti explained.

A few days after testifying, the older Burmese women were transported across the border and handed over to

Burmese authorities. The underage women, however, continued to remain in the government shelter until their

families could be traced. They were eventually deported eight months later, in October 2011.

26 Brothel “raid and rescue” efforts were a controversial weapon in global anti-trafficking campaigns. Anti-trafficking advocates extolled the enterprise of rescuing sex trafficking victims but critics argued that brothel raids merely drove prostitution under- ground, making it harder to reach the real problem—young girls and women who were forced to provide sexual services against their will. 27

All quotations attributed to Ben Svasti were drawn from an interview with the author on January 30, 2013.

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HKS Case Program 9 of 14 Case Number 1991.0

Thailand’s Response to Human Trafficking

The Thai government had been shocked into action in 1984 when a brothel in southern Thailand caught fire

and burned to death several trafficked Thai women chained to beds. Thailand had since displayed a strong com-

mitment to building a robust legal and regulatory framework against trafficking and other forms of exploitation,

particularly against women and children. In 2007, the new constitution banned forced labor, and Thailand was a

signatory to several international covenants and ILO conventions outlawing forced labor. 28

Thailand initiated the creation of a common policy against trafficking with six other countries in the greater

Mekong sub-region, and entered into several memorandums of understanding with neighboring states on issues

such as victim identification and repatriation. In 2008, the legislature enacted the landmark Anti-Trafficking in Per-

sons Act. And in 2009, the government undertook a widely touted migrant worker verification process which

would free migrants to move and work anywhere in Thailand. In addition, the Thai bureaucratic machinery was

rewired with the goal of both preventing and swiftly punishing acts of trafficking. The respected Ministry of Social

Development and Human Security took the lead on coordinating anti-trafficking efforts. In recognition of the fact

that men also faced egregious levels of exploitation, the Thai government opened up several shelters to receive

male victims of trafficking.

But in a searing 2010 report, Human Rights Watch laid bare how the aspirations of Thailand’s national gov-

ernment were routinely undercut by endemic corruption at the local level. The report documented many instances

of abuse of power by the Royal Thai Police and security forces, and criticized the “pervasive climate of impunity,”

enjoyed by enforcement agents across the country. 29

According to Robertson, “the issue of effective work on hu-

man trafficking ran right up against the system of extortion by police and control of workers by employers.” Rob-

ertson described a form of police corruption to illustrate the challenge. “When the police encounter migrant work-

ers they choose which criminal violation to deal with first. Often, they ignore labor rights violations or human

rights violations and enforce immigration law. Local police in the cities treat migrant workers like walking ATMs.

The police catch migrants and even if the migrants have official documents as proof that they are in the country

legally, they will request a bribe.” In other instances, local police had been known to tip off employers before a

planned raid.

By most accounts, the process of assistance for victims of trafficking in Thailand, from identification to rehabil-

itation—factors weighted heavily in the TIP tier ranking system—was fraught with challenges. According to Svasti,

Executive Director of TRAFCORD, the Thai police were just one of the many impediments that contributed to high

levels of trafficking. The Thai criminal justice system, including prosecutors and judges, were also known to be fla-

grantly ineffective at seeing through investigations, arrests, prosecutions and convictions of trafficking offenders.

28

Thailand had also signed the anti-trafficking Palermo Protocol, but by 2012, had not passed the legislation to ratify the proto- col, giving it full effect. 29

Human Rights Watch, “From the Tiger to the Crocodile: Abuse of Migrant Workers in Thailand,” 2010, p. 2.

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HKS Case Program 10 of 14 Case Number 1991.0

Thailand TIP Report Submission

The State Department, as stipulated in the TVPA, submitted its global TIP report to Congress in June every

year. U.S. embassies across the world collected information from a variety of sources and sent regular cable up-

dates to Washington. The annual exercise culminated in February with one large submission from each of the rele-

vant embassies answering an elaborate set of questions from the Office to Monitor and Combat Trafficking in Per-

sons. These embassy TIP report submissions were crucial to the TIP report’s analyses and recommendations.

In 2010, Griffiths worked closely with a subordinate officer on Thailand’s TIP report submission. “Within the

course of the year, we visited labor unions and talked to NGOs. We worked with our Thai government counter-

parts, made field trips, visited experts and read the literature. Our contribution was to present the perspective

from the field,” Griffiths explained. He understood that the final evaluation of Thailand’s progress on fighting traf-

ficking in persons was in the hands of colleagues in Washington D.C., but Griffiths wanted to ensure that his input

was “accurate, helpful and offered something they wouldn’t otherwise get from another source.”

But how could he determine what was accurate and what was helpful? “Do you evaluate a government most

accurately on the basis of its efforts, over which it has control, or do you evaluate it on the basis of the results,

over which it may not have control? Were we going to look at Thailand’s performance on the basis of the effort

they were putting forward or over the results? Things crystallized around this issue in 2010.”

Thailand had been placed on the Tier 2 Watchlist only once, in 2004. A compelling action plan helped the

country rise back to Tier 2 the next year. But the Office to Monitor and Combat Trafficking in Persons in Washing-

ton D.C. was eager to see more. “We had our usual drumbeat of recommendations but little happened between

2005 and 2009. The problem of law enforcement and victim identification seemed to be getting worse but re-

mained unaddressed,” said Mark Taylor at the State Department in Washington D.C. “We had been patient but the

element of lack of evidence of increasing effort was kicking in.”

In Bangkok, Griffiths recognized that Thailand was strong on two of the three anti-trafficking P’s: prevention

and protection, but the weakest part of the triangle, prosecutions, had not gained momentum. “We immediately

knew that if prosecution was going to be given more weight in the 2010 TIP report, it was going to be a difficult

year for Thailand. We told the Thai government what was coming down the pike. They pushed back saying ‘that’s

not as easy as you think,’” Griffiths recalled. “They believed that we should focus on the anti-trafficking legislation

passed in 2009.” Griffiths knew Washington was looking for more prosecutions and urged greater focus there, and

requested his Thai partners keep him informed of any significant arrests. He then set out to understand the Thai

anti-trafficking landscape better.

By February 2010, the Bangkok Embassy, under Griffiths’ direction, had sent an impressive corpus of analysis

to Washington D.C. “We wanted to make sure that the tier ranking decision would not be taken lightly. We provid-

ed Washington with information so they could weigh all the factors appropriately. We sent them perspectives

from NGOs in the field. I used my Kennedy School training to do an analysis on per capita GDP and its correlation

with migration and trafficking in persons. We talked about the bureaucratic realities within the Thai government

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and how the dedicated officials were working hard but they had their own challenges to get an audience, to get

influence,” Griffiths added.

The final Thailand 2010 TIP report submission from Bangkok was in itself an extraordinary compilation of a

year’s worth of detail culled from the Thai government and many other sources. It included accounts of specific

raids and their results, numbers of people trafficked as well as prosecutions, descriptions of the slew of laws

against all forms of trafficking, details on trainings held to strengthen law enforcement, the Thai government’s

efforts to address forced labor, and much more. 30

Thailand TIP Data Analysis in Washington

In early 2010, Mark Taylor and his team at the Office to Monitor and Combat Trafficking in Persons would use

the Bangkok embassy TIP report submission along with information from NGOs and other credible studies to eval-

uate Thailand’s overall performance. All the analysis would boil down to one question: did Thailand demonstrate

evidence of increasing effort? The answer to which would determine whether the country would stay on Tier 2 or

drop to Tier 2 Watchlist.

Based on the TVPA’s guidelines, tier placement analyses assigned law enforcement the most weight, followed

closely by victim protection. From the outset it was apparent to Taylor that the top imperative for Thailand in the

2009 TIP report: improve efforts to identify victims of trafficking among vulnerable populations, had remained

static. “It was the area of greatest concern where there was the least amount of progress,” Taylor explained.

“We’ve come to recognize that without adequate victim identification, all the other responses suffer. You can’t

have adequate victim protection if victims are not being identified and you will have a diminished ability to prose-

cute cases effectively if the victims are not being identified. The Thai government in this case was behind in ac-

knowledging the forced labor realm. They were relatively good at addressing sex trafficking over the years. But we

were seeing a trend of migrant workers filling low skilled jobs and a lot of exploitation that amounted to traffick-

ing. The Thai government had not really, in its thinking and approaches to trafficking, evolved at the same pace as

the problem had.”

The lack of prosecutions, given the scale of the problem, was another yawning gap in the Thai response. The

State Department did not expect Thailand to allocate the same level of anti-trafficking resources as a developed

country but closely examined if the government used enough of its resources and capacity to befit its middle in-

come status. Research had revealed that funds the Thai government had allocated for trafficking, particularly for

helping victims, had not been fully utilized. “We didn’t think that they had a real challenge with resources. It

seemed to be more of a political will issue,” Taylor declared.

30

U.S. Embassy Cables, “Thailand: Trafficking in Persons Report – 2010,” From U.S. Embassy in Bangkok to Department of State, Washington D.C., February 10, 2010, https://dazzlepod.com/cable/10BANGKOK468/?q=2010%20TIP%20thailand, accessed January 8, 2013.

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HKS Case Program 12 of 14 Case Number 1991.0

The Question of Will

As Taylor and his team were wading through the TIP data and research, in February 2010, a senior delegation

of Thai diplomats and bureaucrats arrived at the State Department to present their case. According to Griffiths,

“the Thai delegation went to Washington on its own dime, as it had in previous years, to discuss with the State

Department and Congressional committees the challenges they were facing and what they were doing about

them. They even developed a small bureaucracy to gather TIP data in the format we wanted. It was really quite

phenomenal.”

The upper echelons of the Thai government seemed committed to addressing concerns in the TIP report. Tay-

lor, however, believed that this commitment was driven largely by the fear of “reputational harm.” “There was a

feeling in the Thai government that they might have been competing for informational space. They wanted to go

right to the source of the draft and be able to say, what are your concerns, where can we provide more infor-

mation to clarify? That’s in addition to having already provided a lot of the same information through the U.S. em-

bassy. But what the Thai government tended to produce, more often than not, were preventative efforts or struc-

tural elements. They had reorganized their bureaucracy and promulgated new legislation for the registration of

migrant workers. All these definitely had a preventative effect but the efforts seldom got to the top line issues,” he

said.

In Taylor’s experience, “countries varied in the way they responded to the TIP report. Some countries just

didn’t care. And other countries were very sensitive to the way they were portrayed publicly. Thailand was in that

latter category.” Phil Robertson at Human Rights Watch shared the same perception, “Thailand did not want to be

seen as the bottom of the barrel on trafficking. Where the Thai government could do something, they did it, like

improving shelters. But they couldn’t crack the nut of the police-employer nexus and control of migrant workers.

And there was no political commitment to take on the police. Therefore you didn’t get investigations of trafficking,

you didn’t get identification of victims of trafficking and you didn’t get effective prosecutions.” Ben Svasti at

TRAFCORD, agreed. “If there was political will from the highest levels in Thai government for the police to get seri-

ous on human trafficking, they could do it. As they've shown they can with drug trafficking, for example. They went

in too heavy-handed against drug trafficking and there have been human rights concerns but it shows that with

political will, they will take the task seriously.”

For Griffiths, the question of the motives and durability of Thailand’s commitment to stepped-up efforts was a

loaded one. He had worked closely with bureaucrats in the Ministries of Social Development and Human Security,

Interior and Foreign Affairs, been part of police trainings and interacted with politicians. He had experienced first-

hand Thai willingness to act and cooperate with the U.S. government. Thailand had already demonstrated an abil-

ity to address big, intractable problems such as child prostitution and drug trafficking, but those campaigns had

taken many years to show fruition. In addition, Griffiths didn’t want to discount the effects of the ongoing political

upheaval. “In the competition for resources, budgets and priorities the political climate was a distraction. It weak-

ened the ability of the people who would otherwise have been able to devote more energy and resources to this

problem.”

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HKS Case Program 13 of 14 Case Number 1991.0

The Decision

Ultimately, prevention efforts as presented by the Thai delegation were incorporated in the tier placement

consideration, but not accorded a lot of weight. Taylor’s team and the Thai delegation also disagreed on issues

such as the effectiveness of the Thai migrant verification process and the lack of criminal prosecutions for forced

labor violations. The State Department eventually decided that Thailand had not demonstrated adequate evidence

of increasing efforts and could no longer justify its position on Tier 2.

In June 2010, when the TIP report was made public, the Thai government bristled at the affront of slipping

from its accustomed Tier 2 to the watchlist. “The Thai were doing a lot of good things in many areas and I think

they felt like they were on pretty solid ground. I think the downgrade came as a surprise to them,” Griffiths said.

The official Thai response to the TIP report was swift and scathing. In twin messages to the U.S. embassy in

Bangkok and the Thai embassy in Washington D.C., the Foreign Ministry “expressed its disappointment to the U.S.

for including Thailand on its human trafficking watch list.” According to a Foreign Ministry spokesperson “Thailand

doubted the credibility of the U.S. report because it came out despite our efforts to provide further updates [on

the country's measures to handle the problem] to the U.S. that were seen throughout the year. We tried to tackle

all the problems we could but this was not reflected in the report." 31

Tough Love

The public disagreement was not the end of the line for the two countries, however. In keeping with custom,

the State Department did not “rank and run,” Taylor explained. “Particularly for countries that have been down-

graded or remain on a low grade, we offer a kind of tough love. We want to be there, sometimes physically, to

explain what we wrote, to hear the criticisms, to hear where we got it right but then hopefully from that part of

the discussion we move on to working together.”

In the weeks following the release of the report, both Griffiths and Taylor, who had arrived in Bangkok to meet

with Thai officials, encountered the full extent of the Thai government backlash. Taylor recalled his meetings with

the Thai, “they weren’t happy at all. The Thai display of anger is not like a lot of other governments. But I remem-

ber very well sitting in the Foreign Ministry and getting kind of beaten up. The principal argument they made was

that we got an imbalanced picture of what they were doing and that we were listening too much to NGOs.” On

other issues Griffiths remembered that “the nature of our meetings with the Thai had changed. Our discussions

were no longer those of partners.”

Griffiths was worried that U.S-Thai relations on trafficking in persons might have reached a “tipping point.”

“Some of the problem is cultural from my personal perspective,” he explained, “Asians are known for being very

concerned about ‘face.’ I think that Westerners sometimes see that as their Achilles heel. ‘If we threaten to embar-

rass them then we can get them to put some fire in their belly.’ And to a certain extent that’s true, but we often

31

Bangkok Post Online, “U.S. Watchlist Disappoints Thailand,” June 17, 2010, http://www.ipcs.org/news/southeast-asia/us- watch-list-disappoints-thailand-10779.html, accessed January 8, 2013.

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HKS Case Program 14 of 14 Case Number 1991.0

forget that, sometimes, in Asia, if you do embarrass somebody publicly, you may have written off that relation-

ship.”

As a diplomat, Griffiths continued to wrestle with his nation’s focus on results while navigating the realities of

working in a complex, relationship-based society. “We had to give the appropriate support to those in the Thai

government who were working with us. After all was said and done, after all our reports, grants, seminars and dis-

cussions, in the end, it would be the Thai who would have to take all actions. We weren’t going to arrest traffick-

ers. We weren’t going to rescue victims of sex trafficking. What is the appropriate role of the U.S. government?

How can we be most helpful? How can we strengthen the hand of our allies to work within their own system? How

do we nudge people sufficiently to really motivate them without getting their backs up?”

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