In September, the U.S. government announced a set of sanctions against Cambodian tycoon and ruling-party senator Ly Yong Phat, along with several related companies, for their role in subjecting trafficked workers to forced labor in online scam centers. This action is the third time the U.S. government has used the Global Magnitsky program to respond to human trafficking, though it does little to remove the uncertainty about the kinds of trafficking that this program can address.
Human Rights First, where we work, and antitrafficking organizations have long argued that Magnitsky-style sanctions targeting human trafficking, including forced labor and sex trafficking, can be an effective means of promoting accountability for crimes that are often difficult to prosecute. This latest set of sanctions is therefore a promising development, particularly as the State Department recently signaled its intent to prioritize using the Global Magnitsky program to address forced labor – a policy we encourage the incoming Trump administration to continue to uphold.
Regardless of the administration, though, questions remain about what forms of human trafficking the U.S. government considers eligible for these sanctions – and specifically whether the trafficking must involve physical abuse to meet the requisite legal threshold, as has been the case in all three instances of trafficking the U.S. government has sanctioned to date. From the use of digital technologies to exploit sex trafficking victims to forced labor practices abetted by certain migrant worker systems, cases of human trafficking that do not involve physical abuse are widespread. These cases should also be a focus of the U.S. government as it prioritizes using the Global Magnitsky program to address human trafficking.
What is Human Trafficking?
Human trafficking is an umbrella term that refers to crimes involving the exploitation of a person through force, fraud, or coercion for economic profit. The U.S. government recognizes two primary forms of human trafficking: forced labor and sex trafficking.
Both forced labor and sex trafficking have several definitions under U.S. law, all of which originated from the Trafficking Victims Protection Act of 2000 (TVPA). These definitions largely align with the related definitions under international law as provided in the Forced Labour Convention of 1930 and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (known as the Palermo Protocol).
To aid in identifying instances of forced labor, the International Labor Organization has developed a set of eleven indicators: abuse of vulnerability, deception, restriction of movement, isolation, physical and sexual violence, intimidation and threats, retention of identity documents (such that workers cannot access them on demand or leave their job without risk of losing them), withholding of wages, debt bondage (where individuals are subject to forced labor in an attempt to work off incurred or inherited debt), abusive living or working conditions, and excessive overtime. In some cases, a single indicator may suffice to determine the existence of forced labor, though multiple indicators are often present.
Under U.S. and international law, human trafficking occurs even when the means by which traffickers exploit victims do not involve physical abuse. Non-physical means of trafficking include threats of physical harm; coercion, such as the abuse or threatened abuse of the legal system; deception; and psychological, financial, or reputation harm. Such elements have been found, for example, in forced labor practices embedded in corporate supply chains.
Using Magnitsky-Style Sanctions to Address Human Trafficking
Though the Global Magnitsky sanctions program was created in 2017, and Congress in an update to the TVPA further explicitly authorized the program’s use against forced labor and sex trafficking since 2019, it was not until 2022 that the U.S. government first used this sanctions program to address human trafficking.
In December 2022, following advocacy efforts and sanctions recommendations by Human Rights First and other civil society actors, the U.S. government imposed the first two sets of Global Magnitsky sanctions directly addressing human trafficking, including the first forced labor case and the first sex trafficking case. The former targeted illegal, unreported, and unregulated fishing operations on vessels registered to the People’s Republic of China – and led to the removal of an implicated company from the NASDAQ stock exchange. The latter case targeted Filipino pastor Apollo Quiboloy for sex trafficking, systemic rape, and physical abuse of young girls. The sanctions against Quiboloy were widely reported in the Philippines and appear to have bolstered domestic advocacy, which recently resulted in his arrest and appearance before a Philippine Senate committee hearing investigating his crimes. In imposing these sanctions, the U.S. government recognized for the first time that human trafficking, including forced labor and sex trafficking, could be sanctionable “serious human rights abuses” under the Global Magnitsky program. September’s action against Ly and others followed this precedent as the second-ever Global Magnitsky sanctions for forced labor.
In addition, the United States in December 2023 for the first time sanctioned forced labor as a “gross violation of human rights” under the Section 7031(c) visa restriction program, imposing a visa ban on a former local official in Indonesia, Terbit Rencana Perangin-Angin, for “the forced labor of boys and men.” While the State Department did not detail the facts of the case, Perangin-Angin allegedly imprisoned individuals “under the guise of a drug rehabilitation program” and forced them to work at a palm plantation and palm oil factory he owned.
This “gross violation of human rights” standard under the Section 7031(c) visa ban program is a slightly narrower definition than the Global Magnitsky sanctions program’s “serious human rights abuse” standard. It only covers government officials and a set of defined acts, including the flagrant denial of the right to life, liberty, and security.
The Legal Basis for Magnitsky-Style Sanctions in Cases of Human Trafficking
The recent sanctions against Ly are a welcome addition to the limited number of U.S. sanctions addressing human trafficking made thus far – and one long-awaited by civil society. Also welcome was the accompanying U.S. announcement that “[a]ddressing serious human rights abuse in the context of forced labor is a priority line of effort for our use of the Global Magnitsky program.” However, there is still ambiguity about whether all forms of human trafficking qualify for sanctions under U.S. interpretations of the relevant law, or only those involving physical abuse.
Part of this uncertainty is due to the way the U.S. government publicizes its Global Magnitsky sanctions designations. While the press releases announcing these actions describe the sanctioned person’s alleged activities, it is not always clear which specific acts attributed to the sanctioned person provided the legal basis for the sanctions and which acts, if any, were simply included for context or broader condemnation.
To date, the U.S. government has only used Global Magnitsky sanctions in human trafficking cases that involved physical abuse. In the case of the Chinese fishing vessels, the Treasury Department cited both physical abuse and non-physical indicators of forced labor, such as: deaths of crew members attributed to poor conditions, physical abuse, malnutrition, isolation, overwork, withheld pay, deceptive recruiting practices, and retention of identity documents, among other actions. In the Quiboloy case, the Treasury Department cited coerced sexual intercourse, rape, and “other forms of physical abuse” against girls and women.
The basis for the Global Magnitsky sanctions against Ly and his businesses similarly includes a range of forced labor indicators. The press release cites beatings of workers who called for help, abuse with electric shocks, and reports of victims jumping to their death, along with luring victims to work under false employment opportunities, confiscating their phones and passports, making them pay hefty ransoms, and threatening them with being sold to other online scam gangs.
(The press release for the Section 7031(c) visa ban on Perangin-Angin provided too little detail as to the “forced labor” that was the basis for the ban to shed any light on whether non-physical forms of forced labor can qualify as a “gross violation of human rights” under that program.)
Targeting Human Trafficking Without Physical Abuse
Thus far, Global Magnitsky sanctions for human trafficking have therefore appeared to rely, at least in part, on documented incidents of physical abuse. However, not every case of human trafficking involves such abuse – for instance, when governments coerce labor by threatening to withhold public benefits, or when sex traffickers recruit individuals through threats of reputation or other forms of harm. One form of trafficking that happens to be especially difficult to prosecute – yet can and should be sanctioned – involves foreign ambassadors, who have been accused of leveraging their diplomatic status to fraudulently transport domestic workers into the United States and coerce labor by taking their passports and through other non-violent extortion.
These and other trafficking-related acts may constitute “flagrant denial[s] of the right to life, liberty, or the security of person,” which the U.S. government considers to be gross violations of human rights – and thus should be sufficient grounds for sanctions under both the Section 7031(c) and Global Magnitsky programs. All acts of trafficking involve a violation of an individual’s bodily and mental integrity, which has been recognized as essential to the right to the security of person under international law. Often, these acts involve bodily confinement without free consent or involuntary transportation, both of which are contrary to the right to liberty of person. Additionally, conditions that can be life threatening, such as overcrowding and malnutrition, constitute a denial of the right to life.
In our assessment, if human traffickers use non-physical means to subject victims to forced labor, the U.S. government has the legal authority to sanction that conduct as a flagrant denial of a person’s right to life, liberty, and security – and should do so, irrespective of whether the perpetrator inflicted physical abuse. The same is true for sex trafficking, which also constitutes a violation of these rights regardless of whether acts of physical abuse are involved.
We welcome the U.S. government’s apparent growing commitment to using Magnitsky-style sanctions to address human trafficking. We strongly encourage the current Biden and new Trump administrations to take meaningful action against these abuses by using the Global Magnitsky program to deter and provide accountability for trafficking cases going forward. To do so, it must extend these tools to address cases of human trafficking where no physical abuse is present. Such trafficking is prevalent, and the U.S. government should prioritize using targeted sanctions tools to hold perpetrators accountable for all forms of this exploitation.