The turn to crime control as rights work also interwove with feminism’s rise in global law-making. A re-figuration of the migrant was happening at the same time: during the mid-to-late 1990s, we see both the women’s rights-led attention to ‘sexual slavery’, and some attention to the more general (non-sexual) abuses of women migrants, coupled with attention to the newly exploding quotient of cross-border labourers. At the time of the drafting of the Protocol, two terms are almost interchangeably in play: trafficking and smuggling. The racial and gendered dimensions of different kinds of border-crossers are immediately apparent, however, in the divisions of legal norms in the treaties of 2000. ‘Smuggled migrants’ are typically gendered male in popular accounts, and are darker/expellable, triggering fewer duties from the State under their protocol (smuggled migrants).11 ‘Trafficked persons’ are figured as female, and deemed to be of ‘all races’, and garner slightly more duties of protection, although these duties are either a very slim peg (States may provide a limited selection of victim services) or Orwellian (requiring surveillance to gain benefits).
Stories of sexual harm are globalised in the trafficking story: the ‘exotic other’/brown woman as a category of victim works to expand the universe of imaginable victims; and the remit of the State to redress sexual harm beyond the blue-eyed girls trapped in the ‘White Slavery’ paradigm popularly represented in the nineteenth century.12 To determine the scope of their nominal subject, ‘trafficking’, Protocol drafters simultaneously drew on and rejected the elements of the crime attached to prior historical treaties, often summarised as ‘White Slavery’, which focused exclusively on the movement of persons for prostitution (“to gratify the passions of another”), and which have been characterised as protectionist and moralistic.13 To this extent, the Palermo Protocol is treaty as palimpsest. A palimpsest in art history is a canvas where an underlying drawing or painting shows through the next painted-over layer and its images. The historical legacy of the ‘White Slavery’ conventions bleeds through, and is retained through the need to reach a compromise which would allow the adoption of a text.
Yet the drafters needed to clarify a crime – not just a policy statement. It is another historical fact that this drafting arose during, indeed, can be seen as co-constructing, an epic struggle within feminism and women’s rights over whether the exchange of sex for money was always dangerous for women. This fight has had many eruptions14 and no resolution.15 International human rights law in 2000 had no clear position on the legality/criminality of the exchange of sex for money; at the time of writing, there is still no clear consensus.16 Most critically for the content of the Protocol, this NGO struggle, and the historical legacies of the early twentieth century trafficking treaties produced State negotiations which, at times, advocated equating the crime of trafficking with the crime of prostitution, as well as equating the fact of prostitution with a violation of women’s rights.17 Although the final treaty did not accept these two connected positions, the controversies were resolved by a text which places unstable compromise language (around ‘sexual exploitation’) at the centre of a crime control treaty.
The centre cannot hold: exploitation as a concept with no international law meaning
Article 3 of the Palermo Protocol is meant to set out the heart of the crime, but one of its three elements includes an impossible purpose: that the various acts counting as ‘trafficking’ must be carried out “for the purpose of exploitation”.18 Exploitation has no common legal meaning.19 As a kind of clarification, the text goes on to say that: “Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.20 The sex sector is the only named labour sector in the Protocol; following from this comes a tendency to ‘identify’ as victims primarily people in prostitution, and specifically, given the history of prostitution, women. It is in the glossing and gap-filling of the definition of ‘exploitation’ sufficient to constitute a crime that the ‘amendment through explanation’ begins – as early as 2001. Two examples give a sense of the different directions taken: Jordan’s strategy of replacing the definition entirely; and Gallagher’s strategy to ‘give guidance to the States’.
Ann Jordan, an early and noted advocate on anti-trafficking work from a rights perspective, created a comprehensive analysis, embedded in what she calls the “Annotated Protocol” (Annotated Protocol), which carried out a legally rigorous analysis of every article of the Protocol, including its relationship to the primary convention.21 Jordan seeks to rectify the vague centre of the Protocol crime by substituting entirely another, clearer definition for the crime of trafficking: trafficking in persons should be defined as “the recruitment, transportation, transfer, harbouring or receipt of persons, by any means, for forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.22 Notably, Jordan avoids entirely the use of the word ‘exploitation’, in order to make an enforceable law at the national level.
Conversely, in her 2001 article, Gallagher also presciently hones in on the dangerous vagueness of the ‘trafficking’ definition, but crafts her solution in a different vein. First, Gallagher is alarmed that the requisite purpose, ‘exploitation’, separates ‘trafficking’ from ‘migrant smuggling’. Presciently aware of the consequences of this distinction, Gallagher is an early and clear voice registering concern that ‘trafficked persons’ will be elevated above ‘smuggled migrants’ as victims of crime, and also as rights holders.23 Moreover, Gallagher is also concerned that the category of exploitation is both key and problematically ambiguous: how is this intangible, end-product ‘exploitation’ to become visible to border guards charged with patrolling for and distinguishing ‘trafficked persons’ from smuggled migrants? She rightly deduces that there will be trouble ‘finding trafficked persons’.
Gallagher begins the work to push States to develop means by which they can find trafficked persons. Her interests are rights-promoting: she wants trafficked persons found so they can benefit from the services and protections that parties to the Protocol are encouraged to provide. But this moment marks a clear beachhead towards the argument that, for the Protocol to work, that is, to facilitate the provision of services to trafficked persons, States must fulfil their background duty of finding trafficked persons. The struggle to promote benchmarks and indicators for the successful identification of trafficked persons (Part 2) emerges from this; and recognition that these benchmarks and indicators are, themselves, tools of governance growing rapidly within the human rights regime, starts here as well.24
But in this next section, we want to call attention to the very specific effect of the ‘incoherence’ operating within the Protocol: lacking a common, countable, identifiable notion of ‘exploitation’. The Protocol is an accordion: the set of acts which may qualify in national law as ‘trafficking’ can expand and contract according to local interest. States which sign on must, “at a minimum”, recognise certain forms of abuse as trafficking – but can add others. Moreover, while the Protocol does not equate movement into prostitution as ‘trafficking’, States are not prohibited from addressing it through prosecution and calling it ‘trafficking’ in their national law. Who, then, are we searching for?25
The accordion nature of the crime defeats one of the goals of global drafting of a treaty: despite the general claim that, with the Protocol, the collection of meaningful data will be made possible, it is precisely the collection of meaningful data which is frustrated by the legal text.26
The 2015 US Trafficking in Persons Report notes that across all the categories of trafficking recognised under its lens (a lens which itself hybridises US and UN law) there have been at most, in 2014, 10,000 prosecutions and 4,000 convictions, globally.27 In the 2016 Report, the numbers almost doubled (see Table 26.1 below):28 but even 18,000 prosecutions and 6,500 convictions are still miniscule numbers compared to
the oft-narrated millions enslaved.29 The tininess of the number sets up a global posture of anxiety: on the one hand, the narratives of ‘trafficking’ tell stories of tens of millions of ‘slaves/trafficked persons’; on the other hand, only a few thousand are found in the criminal process. At the same time, with States seeking increased regulatory and punitive powers in light of general postures of insecurity and fears of porous borders, one would expect far greater numbers of prosecutions than this table depicts.
What is going on here? From the perspective of the advocate, an answer that addresses both the inaction of States, and flatters the States’ desire to reassert control over their borders, is to pressure the State to live up to its own power: find more ‘trafficked persons’ and provide them services. But the operational duties of the Protocol rely on the notion of ‘documents’, surveil-lance, and interception of irregular border-crossers to fulfil the goals of prevention. Moreover, it is prosecution that holds the weight of what will work to stop ‘trafficking’. In this context, assistance to trafficked persons is built-in as ‘recommended’: States “shall consider”; “in appropriate cases” they are encouraged to provide such crucial support measures as respect for privacy and confidentiality (of identification), engagement in criminal proceedings, as well as other measures of support such as legal and health services.30 Rights as endorsed legal claims held by trafficked persons are represented in the savings clauses of the Protocol.31
Table 26.1 Statistics on Trafficking in Human Beings
Year Prosecutions Convictions Victims Identified New or Amended Legislation
* * *
2008 5,212(312) 2,983(104) 30,961 26
2009 5,606 (432) 4,166(335) 49,105 33
2010 6,017 (607) 3,619(237) 33,113 17
2011 7,909 (456) 3,969 (278) 42,291 (15,205) 15
2012 7,705(1,153) 4,746(518) 46,570(17,368) 21
2013 9,460(1,199) 5,776 (470) 44,758(10,603) 58
2014 10,051 (418) 4,443(216) 44,462 (11,438) 20
2015 18,930 (857) 6,609 (456) 77,823(14,262) 30
Advocates have been pushing at the national level for meaningful rights protections since before the adoption of the Protocol.32 Yet those national systems, such as the US, which do extend meaningful rights to persons found to have been trafficked, do it only through a legal process conditioning benefits and rights on co-operation with prosecution.33 The conditionality of rights towards persons identified by the State as trafficked is one fundamental problem with this prosecutor model (see Part 3 for more on ‘ghost rights’). But here, the palimpsest problem of the Protocol, both with its orientation and with the actual efficacy of its definition in finding ‘trafficked persons’, also becomes clear. The tilt of the Protocol, trapped in history, as well as now hemmed-in by bad drafting, tends toward the ‘finding’, through schemes of victim identification, primarily of women who are trapped in the sex sector, as well as toward the prosecution, as traffickers, of those persons, of all genders, who profit from this sector.
In 2015, Gallagher addressed the perennial problem that is ‘defining exploitation’:
The risk that important concepts contained in the Protocol are not clearly understood and, therefore, are not consistently implemented and applied has been acknowledged by States Parties.34
The 2015 UNODC Issue Paper, echoing Jordan’s Annotated Protocol from a decade back, carefully concludes that the term ‘exploitation’ has no accepted meaning under international law, and so examples of forms of exploitation must be given – forced labour, servitude, slavery or practices similar to slavery, and, “the exploitation of prostitution or other forms of sexual exploitation”.35
We argue that, owing to the contemporary feminist and rights-inflected concern with sexual harm, ‘sexual exploitation’ does the bulk of the work in conveying what is exploitation;36 and therefore, it is no surprise that the bulk of the (still tiny) number of identified persons are sought and found in the sex sector.
The UNODC 2015 Issue Paper, as well as much writing by advocates and States, seeks to address both the general incoherence (what is exploitation?) and the historically linked ‘White Slavery’ drift (prosecution too tilted towards the sex sector). The goal is to produce guidance by which governments may act to identify persons who are exploited in other realms, and who face harms in other registers. So giving guidance to States on how to identify and thus ‘find’ persons becomes the pre-eminent duty of the literature aimed at implementation. This literature is addressed next.
Part 2: the literature and practices of ‘finding’ trafficked persons
The number of victims identified as such remains glaringly low.37 States are being pushed to meet the headlines of millions trafficked – without having a viable, coherent definition of ‘human trafficking’ in the first place.38 The duty to find trafficked persons, despite contestation of who actually counts as a trafficked individual, has led to an explosion of guidance literature on finding people.39 This section looks at this development from two different perspectives: first, how advocates and States have conceptualised the need to ‘identify’ trafficked persons instrumentally –i.e., the ‘good State’ must find people in order to convey the services which are due; and, second, how the practices that must be deployed to ‘find’ a trafficked victim, as embodied in the training manuals, themselves build a material impact – more surveillance into informal sectors. These practices lead to the promulgation of standards by which good victims deserving of services can be separated from bad, and to the fact that non-state actors are enlisted in surveillance practices alongside the State.
The ‘good State’ and the invention of an instrumental right
Even before the Protocol was adopted, the idea that services – and rights – could not be conferred upon persons ‘in the shadows’ was central to advocacy.40 The Protocol essentially codifies this viewpoint by making the identification of victims the gateway to all other concomitant State obligations to the trafficked individual. As Gallagher noted in 2001, for the State to fulfil its ‘core obligations’ of “non criminalisation of victims; provisions of immediate protection and support; provision of legal assistance including temporary residency; and safe and voluntary return”, comes the ‘general obligation’ to find the victim.41 Simply put, any rights that attach to the status of the victim depend on the proper attribution of this status.42
By 2003, advocates were already writing in the realisation that the regimes of anti-trafficking were running on a misunderstanding of who and how to look for trafficked persons.43 To remedy the problem of identifying victims, some rights-oriented advocates began to call for a ‘right of trafficked persons to be questioned’.44 In 2004, the OSCE-ODIHR released a publication on National Referral Mechanisms – structures created by States working with NGOs to ensure that trafficked persons are found, properly identified, and when ‘referred’ to State processes, are treated with respect for their rights.45 The report focused on the process of identification as the gateway for receipt of services, including whatever legal status or benefits that characterisation as a ‘trafficked person’ may bring.
As discussed in Part 1, the legal framework of the two UN Protocols, under which one is either a rights-violated trafficked person with a claim to State services, or an illegal/smuggled migrant, created a perverse incentive for governments to identify irregular migrants as having been smuggled rather than trafficked.46 As trafficked victims trigger possible protections, the cost to the State, in terms of bureaucracy and services, is greater. In this light, the ‘right to be questioned’ is invented, and can be understood as a mechanism of economic prudence, as well as of State control, sorting trafficking victims from other illegal migrants. The ‘right to be questioned, and thus found’ (and identified) serves potentially conflicting goals from the perspective of human rights: on the one hand, rights advocates see inquiry as a gateway for rights validation, on the other, it sorts ‘worthy’ victims from ‘unworthy’ ones for the sake of keeping unwanted migrants out a
nd preserving State resources.
Right not to be found?
In general, very few governmental services exist for returned trafficked persons that are also consistent with rights, particularly self-determination and privacy rights: women’s convictions for prostitution may be published in local gazettes on their return; HIV status may be released to the media; and a wide range of actors/agents may pressure unprotected family members for money for unfulfilled travel debts, or government agents may accuse family members of participation in trafficking networks.47 While the US, for example, is rightly criticised for its conditional services, nonetheless it is statutorily compelled to provide actual services, as well as a pathway to citizenship.48 Notably, those countries that retain the all-prostitution encompassing 1949 definition of ‘trafficking’ (such as India at the time of writing) also often do not convey meaningful legal or social benefits to being found as ‘trafficked’; indeed, this may result in a status akin to detainee in so-called half-way houses.49
Countries of the former Soviet Union and South Eastern Europe have tiny service and response programmes (often doubling as trafficking prevention programmes), which may provide health and counselling services, trauma treatment, or job training (termed re-integration), but often only short term and separated from all other social services – another form of stigma.50
Given these realities, it makes sense that very few exploited migrants decide in favour of being ‘found’ as a trafficked person. The very real possibility that a trafficked person may have no recourse at all to any actual benefits explains why many may not want to be found, especially if being found means being deported, without wages, redress, or protection.51
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