In turning to assessing the current explosion of ‘service literature’ –assistance to States to help them ‘find trafficked persons’ –we invoke the insights of scholars who see rights as tools of ideological and technical governance.52 The good State must know – and State knowing is both a positive extension of care and a repressive extension of policing. As noted earlier, the call to the State to ‘find’ answers the efforts to reconcile the horrific tales of unimaginable magnitudes of suffering persons and the tiny numbers found in accord with recent legal definition.53 The 2014 Trafficking Victim Identification Tool, produced by the Vera Institute of Justice, problematises the need which the toolkit is meeting precisely as this: “Human trafficking occurs on an enormous scale in the United States, but only a fraction of victims are identified”.54 A toolkit for finding is thus produced.
How to go about finding and interviewing victims has led to a cottage industry of manuals and ‘victim identification tool kits’, produced at all levels of governance: UN agencies, national governments, and NGOs. Some of these toolkits are geared towards specific locations where trafficking victims may be; some are geared towards medical and health practitioners; others towards consular services and border guards. Most recently, there has been in a surge of toolkits aimed specifically at various implicated actors in the private sector, for example, truck drivers and flight attendants.55 A few are concerned with obligations to connect ‘found persons’ with services.
Many toolkits generally begin with directions for differentiating smuggling victims from those of trafficking. To this point, these service manuals point to indicators of consent, exploitation, and transnational status.56 While there are UN documents that provide rigorous guidance for revising the definition of exploitation and consent, in many toolkits the meaning of consent, and its complicated relationship to exploitation, is largely glossed over. One victim identification manual, for example, characterises the difference in the following way:
“Trafficking” is based on exploitation and does not require movement across borders.
“Smuggling” is based on movement and involves moving a person across a country’s border with that person’s consent in violation of immigration laws.57
A definition like this draws a clear line between ‘good’ and ‘bad’ migrants, between ‘exploited victims’ and ‘violators of immigration laws’. Problematically, it fails to even consider the possibility, raised repeatedly in the anti-trafficking literature, that smuggled migrants can easily become victims of trafficking.
Another category of toolkits tends to bypass this muddled distinction altogether, focusing instead on a list of ‘red flags’ that individuals should be on the lookout for.58 Rather than distinguishing between smuggling and trafficking, these manuals guide the potential identifier with an open-ended list of examples of exploitation, most always beginning with that of sexual exploitation. These materials give no indication of where exploitation begins and ends; that is, what should not be considered exploitation for the purpose of victim identification. Thus, the ‘identifier’ is in many ways left to remedy the task left open by the Protocol: filling the lacunae in the definition of exploitation.
There is, additionally, a common trope throughout these victim identification materials, most prevalent in those with a specific focus on trafficking in the US, that victims are in ‘plain sight’ if one is aware of what to look for. The message that trafficking victims are potentially everywhere and anywhere perpetuates the ‘millions around and no one found’ myth previously discussed.59
Finally, a significant number of these manuals reveal the biases of ‘finding’ tending towards sex slaves. As Alicia Peters astutely argues, the “law in their minds” in the US officials affects who is actually identified as a trafficking victim, with the axis of sexual harm and female innocence playing a key role in government agents’ understanding of who to look for.60 This is echoed in the resulting services, which are largely geared toward female victims.
At the centre of all of these toolkits and manuals is the unspoken right to interview and collect the personal information of the potential victim. Thus, this ‘service literature’, we argue, needs to be understood not simply as a mechanism of technical governance, but additionally as one of State surveillance. New solutions for identifying victims using technological developments are also rapidly being enlisted by advocates and States in search of victims ‘in the shadows’.61 A recent surge in the number of phone apps for identifying human trafficking victims is a paradigm of this trend.62 The effectiveness of these measures is not within the scope of the present chapter. Instead, here they demonstrate how the ‘right to be found’ is being constructed in ideas and practices promoted in the manuals and guides.
Part 3: conclusion or ‘the right to be found vs. the right to be free of exploitation’
In this section we turn to the more conceptual questions generated by the emergence of this ‘right to be found’. There is a vicious paradox in the coercive construction of a right to be found for a person in the shadows: goods and services are conditional to their participation in the prosecution of a criminal proceeding in which they are simultaneously the necessary and expendable/deportable victim. ‘Shadows’ for a trafficked person thus have a number of valences: they are the shadows of crime victimhood; the shadows of gendered and racialised stories of rescuability; and they are also the shadows of precarious status within the State. The undefined, and perhaps un-definable (at least as international crime), concept of ‘exploitation’ makes clear that the mechanisms we are depicting function to confer a ‘captured’ right (the right to be found/identified), while obscuring the possibility of realising a more emancipatory right – the right to be free of exploitation.
Fundamentally, this discussion must take on what it means to confer a right primarily in the shadow of prosecution: to attempt to derive a right not from a first-order claim of a person making a claim for themselves, a claim to dignity and rights as a matter of being, as rights are so often framed,63 but structurally – even instrumentally – to derive a right by implication from what the State is prosecuting against (exploitation), limited by the State’s posture, even as the State’s interest in combatting exploitation is manifestly unclear – and unfulfillable.
This could be denounced as the common failure of ‘rights talk’, but we would prefer to conclude our discussion in the voice of those, “not ready to walk entirely away from rights”.64 We are agnostic as to whether human rights must be rescued from being consigned to the dustbin of history as useless or recuperated to serve a greater vision of human possibility, but we think we are still in a world where human rights is the only language even close to functionally operating to call on global justice in the register where States make law (treaties in criminal law and otherwise). Therefore, we are committed to making these practices transparent and more constructively coherent. For women’s rights in general, and transnational feminism in particular, rights talk and rights practices are still the primary engine of advocates’ engagement with the State.65 So can rights be made in the shadow of the Protocol? We conclude not.
In our reckoning, the State’s ‘duty to find’ maps over its expanding powers of surveillance: some persons in abusive sectors wish to be found and removed, while others wish more simply to stay, but in better working conditions. The ‘right to be found’ emerges in this context – where the State seeks to know who is within its borders, often in the name of national security, but where that State would rather not find persons if real rights are attached too quickly, thus giving a rather grim sense that it is a hollow, contingent right.
In this telling, ‘trafficked persons’ are generally more akin to the subjects of Giorgio Agamben’s ‘bare rights’ holders, without the protective carapaces of citizenship, as Arendt long ago described it, and therefore fictionally, even tragically, deluded rights holders.66 If this is correct, the tropes of ‘sexual harm’ –as the imagined trafficked victim flickers between
innocent rape victim, sexually marked whore (gendered feminine), and guilty illegal migrant (gendered masculine) –matter greatly in how this fiction of rights is constructed. In their article dissecting ideologies and material practices of ‘human trafficking courts’ in New York City, Cohen, Gruber, and Mogalescu put forward the idea of ‘penal welfare’ to explain what is happening. Essentially, their analysis flags that in the wake of the shrinking welfare State, any meaningful, or in the US, even putative, claims to health, housing, labour, education, or other economic and social rights or benefits have evaporated. In its place, following the paths articulated by ‘victim feminism’ [naming the status of women as victims of gendered violence as being the primary path to benefits and rights claims against the State] and the growth of the punitive (prosecutor) State, we have only one mode of claiming benefits as a matter of State duty, and that is through crime victimhood.67
This ‘penal welfare’ lens captures the mode by which victims of trafficking under the Palermo Protocol become anything close to rights holders: they have to be found, and if found – and correctly identified – they can claim contingent, albeit greatly limited rights. This posture, in part, also flags why it is so impossible to use the Protocol to move toward any other, more substantive, first-order rights: the labour-based right to be ‘free of exploitation’, in which the criminal law would function primarily as a supportive regime, cannot be realised solely through prosecution. All the relational and structural questions of ‘what are fair terms of labour’ require multiple sites of organising, associational agitation, and speech within and across borders. These processes cannot be encompassed in the ‘one harm, one prosecution’ of the Protocol.68
Conclusion
How does all this matter in thinking about the future? If we cannot ‘help’ without finding, but finding is a vexed practice of power, what about our other problem of finding: which is that it is ultimately about actually finding out and owning what we know? Janie Chuang, in her review of ‘exploitation creep’ in the practices of various States and agencies (the ILO, IOM, UNODC, the US and others), notes that cloudy definitions, turf wars, and institutional strategies for capturing funding play a huge role in the proliferating definitions of ‘trafficking’, and therefore in who constitutes a ‘trafficked person’. She asks when will advocates and States and IGOs be willing to address the contradictions of our efforts in order to re-negotiate the unstable compromise of ‘trafficking’ –to consider a more functional and rights promoting way?69
This is our question too. Our review of the ‘service’ and translation materials, close to 20 years on, explains the way forward for a criminal law treaty, and suggests that it is time to turn away from this confusion and assess what can actually be done under the umbrella of this law. Can we limit the purposes and practices of the Protocol, and turn to generating theories based on material conditions we study (qualitatively and quantitatively) of the lives and labour of diverse persons, unconstrained by the need to meet the Palermo Protocol’s stated goal of mostly prosecuting ‘traffickers’? Can we use our knowledge to build a new paradigm entirely, outside of trafficking and its discontents?
Notes
1 The term ‘Orwellian’ is often used to signal where independent habits of thought are surrendered to the power of an authoritarian State or set of actors. See www.openculture.com/2015/10/what-orwellian-really-means-an-animated-lesson-about-the-use-abuse-of-the-term.html.
2 Bernstein, E., “The Sexual Politics of the ‘New Abolitionism’” (2007) 18(5) Differences: A Journal of Feminist Cultural Studies 128–151.
3 Halley, J. et al., “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism” (2006) 29(2) Harvard Journal of Law and Gender 335–423.
4 Kennedy, D., “The International Human Rights Movement: Part of the Problem?” (2002) 15 Harvard Human Rights Journal 101–126; Otto, D., “International Human Rights Law: Towards Rethinking Sex/Gender Dualism and Asymmetry”, in Davies, M. and Munro, V. (eds.), A Research Companion to Feminist Legal Theory (Farnham: Ashgate, 2012).
5 Otto, supra note 4.
6 The other dominant anti-trafficking regime globally is the US’s Trafficking Victim Protection (Reauthorized) Act (TVPRA) which, although not a multilateral agreement, has, through the weight of US power, developed into a competing framework for many States. For a thorough analysis of the inter-relationship of the UN Protocol and the US TVPRA, see Chuang, J., “The United States as Global Sheriff: Using Unilateral Sanctions to Combat Human Trafficking” (2006) 27(2) Michigan Journal of International Law 437–494.
7 ICC Statute, Article 7(1)(g) (“Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”).
8 See Halley, J., “Rape in Berlin: Reconsidering the Criminalization of Rape in the International Law of Armed Conflict” (2008) 9(1) Melbourne Journal of International Law 78–124.
9 Orentlicher, D., “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime” (1991) 100(8) The Yale Law Journal 2537–2615; Tulkens, F., “The Paradoxical Relationship Between Criminal Law and Human Rights” (2011) 9 Journal of International Criminal Justice 577–595; Engle, K., “Anti-Impunity and the Turn to Criminal Law in Human Rights” (2015) 100(5) Cornell Law Review 1069–1127; Miller, A. and Roseman, M., “Introduction: Beyond Virtue and Vice, Some Thoughts on Rules of Engagement”, in Miller, A. and Roseman, M. (eds.), Beyond Virtue and Vice: International Human Rights and the Criminal Regulation of Sexuality, Gender and Reproduction (Philadelphia: University of Pennsylvania Press, forthcoming 2018).
10 Miller and Roseman, supra note 9; Engle, supra note 9.
11 Kempadoo, K., “Introduction: From Oral Panic to Global Justice: Changing Perspectives on Trafficking”, in Kempadoo, K., Sanghera, J., and Pattanaik, B. (eds.), Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights (Boulder, CO: Paradigm Publishers, 2005), vii–xxxiv.
12 Doezema, J., Sex Slaves and Discourse Masters: The Construction of Trafficking (New York: Zed Books, 2010); Kapur, R., Makeshift Migrants and Law: Gender, Belonging and Postcolonial Anxieties (New Delhi: Routledge, 2010); Orhant, M., Trafficking in Persons: Myths, Methods and Human Rights (Washington, DC: Population Reference Bureau, 2001).
13 Kempadoo, supra note 11; Sharma, N., “Anti-trafficking Rhetoric and the Making of a Global Apartheid” (2005) 17(3) NWSA Journal 88–111; Kapur, R., “The Tragedy of Victimization Rhetoric: Resurrecting the ‘Native’ Subject in International/Post-colonial Feminist Legal Politics” (2002) 15(1) Harvard Human Rights Journal 1–37.
14 Vance, C.S. “More danger, more pleasure: A decade after the Barnard sexuality conference.” (1993) 38 (1) New York Law School Law Review 289–443; Miller, A. and Vance, C., “Sexuality, Human Rights and Health” (2004) 7(2) Health and Human Rights 5–15; Kapur, supra note 13; Ghosh, S., “Decriminalizing Sex Work” Unequal Status Seminar (2008), www.india-seminar.com/2008/583/583_shohini_ghosh.htm.
15 Doezema, J., “‘Ouch! Western Feminists’ ‘Wounded Attachment’ to the ‘Third World Prostitute’” (2001) 67 Feminist Review 16–38; Chuang, J., “Rescuing Trafficking From Ideological Capture: Prostitution Reform and Anti-Trafficking Law and Policy” (2010) 158(6) University of Pennsylvania Law Review 1655–1728; Ahmed, A., “Feminism, Power and Sex Work in the Context of HIV/AIDS: Consequences for Women’s Health” (2011) 34(1) Harvard Journal of Law and Gender 225–258.
16 The NGO world has shifted considerably in recent years, with both Human Rights Watch and Amnesty International among mainstream international NGOs advocating the decriminalisation of buying and selling sex, joining a range of women, HIV, LGBT, and sex worker-focused NGOs with this position. See Koh, S., Why Amnesty International Must Hold Firm in Its Support for Sex Workers, Open Society Foundation (July 28, 2015); Murphy, C., Sex Workers�
� Rights Are Human Rights, Amnesty International (Aug. 14, 2015).
17 Csete, J. and Seshu, M., “Still Underground: Searching for Progress in Realizing the Human Rights of Women in Prostitution” (2004) 9(3) HIV/AIDS Policy and Review 8–14; Gallagher, A., “Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis” (2001) 23(4) Human Rights Quarterly 975–1004; Kempado, Sanghera, and Pattanaik, supra note 11; Vance, C., “Innocence and Experience: Melodramatic Narratives of Sex Trafficking and Their Consequences for Law and Policy” (2012) 2(2) History of the Present 200–218; Amnesty International, Policy on State Obligations to Respect, Protect and Fulfil the Rights of Sex Workers (POL 30/4062/2016, 2016); Human Rights Watch, “Human Rights Watch Policy on the Legal Status of Sex Work” (2013, organisational memorandum on file with author).
18 Article 3, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (“Palermo Protocol”), A/RES/55/25, adopted November 15, 2000.
19 Allain, J., “No Effective Trafficking Definition Exists: Domestic Implementation of the Palermo Protocol” (2014) 7(1) Albany Government Law Review 111–142.
20 Article 3, Palermo Protocol, supra note 18. Note that for persons under 18, the Protocol stipulates that the ‘by means of’ elements are not required (Article 3 (c)).
21 Jordan, A., The Annotated Guide to the Complete UN Trafficking Protocol (Washington, DC: International Human Rights Group, 2002).
22 Ibid., at 7.
23 Gallagher, supra note 17.
24 Davies, K., Kingsbury, B., and Merry, S., “Indicators as a Technology of Global Governance” (2012) 46(1) Law & Society Review 71–104.
25 Allain, supra note 19.
26 Feingold, D., “Trafficking in Numbers: The Social Construction of Human Trafficking Data”, in Andreas, P. and Greenhill, K. (eds.), Sex, Drugs and Body Counts: The Politics of Numbers in Global Crime and Conflict (Ithaca: Cornell University Press, 2010), pp. 46–74.
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