Training Officials to See Migration as a Crime: The Case of Human Trafficking

The policing of human trafficking (hereafter trafficking) provides us with a useful example of how officials are often taught to ‘read’ signs of mobility as evidence of criminality. By way of background, over the past two decades, a variety of lobby groups have joined forces to develop a powerful campaign against international trafficking. While this campaign has ostensibly taken aim at a broad range of exploitative labour practices, the main result of this collective effort has been to create a consensus that a variety of interventions are necessary to protect underprivileged young women who are trafficked across borders for the purposes of sexual exploitation. Leaving aside the trafficking agenda’s inherent gender, ageist, and prohibitionist biases for the moment, advocacy around this issue has played a powerful role, side by side with the international campaign against human smuggling, in constituting cross-border mobility as a key marker of crime itself. This critique has been developed previously in work highlighting the way the trafficking regime creates highly stylized representations of criminal victimization, and thereby lends support to control-oriented policies which not only work against the aspirations, interests, and livelihoods of many female migrants, particularly those in the sex industry (Agustin 2007; Dozema 2010) but may increase the vulnerability of migrants generally to would-be traffickers (Hathaway 2008) while failing significantly to assist in the detection, capture, and prosecution of the latter (Berman 2003). These critiques have tended to focus on macro-level phenomena, including transnational advocacy campaigns, international institutions and state policies, international agreements and treaties, and public discourse. As a consequence, while they have been able to draw broad linkages between anti-trafficking and immigration control policies, they have not been able to tell us whether law- enforcement officials construct mobility as an object of criminal suspicion, and, if so, how. So the critics cannot tell us whether new policies are influencing practice. In this discussion, I attempt to build on these macro-critiques by drilling down into the everyday practice of criminal justice systems. Here, I want to find out how this global agenda is transforming the way migration and human mobility are regulated, and to what extent the broad trends and macro-phenomena identified by other authors might practically re-shape the opportunity structures for female migrants in particular and mobile people more generally.

In order to understand how anti-trafficking advocates have encouraged officials to view specific types ofmobility as criminal, we first need to examine the degree to which mobility constitutes a core element of the crime of trafficking. Article 3 of the Palermo Protocol defines trafficking as the ‘recruitment, transportation, transfer, harbouring or receipt of persons’ for the purpose of exploitation. While the ‘transportation’ element necessarily implies an act of mobility, the other elements of the crime need not. Under this definition, a perpetrator may have recruited a victim over the phone and transferred or received possession of a victim while he or she remains in a single place of confinement. Hence, according to this definition, a person may be considered as having been a victim of trafficking without ever leaving his or her place of origin and clearly without having moved to another country. While the protocol on trafficking, which is part of the Convention against Transnational Organised Crime, clearly contemplates a scenario in which the perpetrators at least intend to traffic victims across borders, and where physical distance forms a key part of the context that allows the exploitation to take place, migration is not a sine qua non of the crime of trafficking, but rather a component of the crime which is commonly noted and emphasized in public discourse and advocacy surrounding the issue.

In countries like South Africa, this understanding of trafficking as a crime which does not necessarily entail the victim’s movement is important because it means that the laws on trafficking can more closely reflect and address a social reality in which: (a) perpetrators of severe labour exploitation commonly originate from and live in the same communities as their victims—particularly in the farming and domestic workplace settings; and (b) very few victims of international trafficking have been uncovered, either by law-enforcement agencies or systematic research processes (for example Gould and Fick 2008). Here, the remarkable inability of the International Organization for Migration (IOM)’s Southern African Counter Trafficking and Assistance Programme to uncover significant numbers of victims is instructive. Despite an extensive publicity, hotline, training, and research agenda, the programme only provided assistance to approximately 306 victims across the Southern African region between January 2004 and January 2010. In recognition of the possibility that a large portion of trafficking victims in South Africa may in fact be South Africans, the Government of South Africa’s Prevention and Combating of Human Trafficking Bill (B7—2010) specifically removes the requirement of cross-border movement from its definition of the crime of trafficking.

Despite this deliberate legislative initiative to reframe the trafficking initiative around ‘domestic’ concerns, the international organizations who have partnered with the South African government to assist in the implementation of its trafficking legislation have tended to undermine this ‘non-kinetic’ understanding of trafficking in their governmental capacity-building programmes. In particular, they have explicitly presented international migrants as the primary, if not sole, victims of trafficking crimes, and have trained domestic officials in this doctrine. A good example of this type of influence can be found in the training protocols prepared by the IOM for delivery to the officials of the DHA. These protocols draw on a set of standard training materials that the IOM has utilized in a wide variety of other national settings, but has adapted to suit the peculiarities of domestic law and enforcement contexts. The protocols are designed to be delivered by an IOM official or trained educator to small groups of mid-ranking ‘teacher trainers’ within each department. These ‘teacher-trainers’ are then expected to return to their respective places of work and hand on their newly acquired knowledge to a wider body of officials.

The training materials contain detailed descriptions of the international and domestic laws on trafficking and of the nature of the phenomenon of trafficking in South Africa and internationally. They regularly reiterate the fact that the overarching purpose of anti-trafficking law is to criminalize perpetrators and not victims and that trafficking may occur in a variety of local economic sectors (for example agriculture, domestic work, and the sex industry). However, the step-by-step guides which they provide to the officials about how to initiate and conduct a trafficking investigation consistently reinforce the notion that the mobility of victims across borders is the fundamental element of the crime of trafficking.[1]

The training materials achieve this outcome in two steps. First, the documents construct the individual victim as the sole object of criminal ‘analysis’. The protocols envisage an investigative scenario in which the only form of evidence of a criminal act that the official in question has at his or her disposal is the appearance and testimony of a potential victim. The protocols make no reference to the wider range of evidence that might lead an official to become suspicious that a trafficking offence has occurred—whether this evidence is observational (for example encountering signs of trafficking while conducting an inspection of a workplace), interactional (interrogating potential perpetrators of trafficking), or documentary (tip-offs and intelligence received from community sources, media, etc) in nature. Instead, the protocols assume that the only course of events which might plausibly lead an official to begin a trafficking investigation consists of an interpersonal ‘encounter’ between the official and a potential victim.

The training manual then explains to the official how he or she might interrogate the potential victim in order to acquire information that might lead to an investigation and/or to the provision of victim support. While the protocols mention the possibility of inviting a victim to lay charges, they do not deal with the manner in which the official should go about collecting the evidence, and initiating the appropriate administrative procedures, for a viable case of trafficking in court. While this victim-oriented approach is in some ways merely a reflection of the IOM’s mandate to protect migrant populations, it is important to note that it also involves a significant deprioritization of a variety of other cross-border relationships and forms of mobility that often constitute a part of a trafficking offence: specifically, international financial transactions, the movement of illicit goods in barter for trafficked persons, and, of course, the illegal movements of traffickers themselves. The individual migrant victim is presented as the sole means through which the official can obtain evidence of a trafficking crime.

Having assumed this context of a hypothetical meeting between an official and a potential victim, the training materials then lay out a plan for an observation and interrogation session that is designed to ascertain whether the individual in question is indeed a victim of a trafficking offence. Again, despite the fact that there is nothing in the South African legislation which says that an individual must have moved in order to be a victim of trafficking, the materials provide a working definition which makes migration an essential component of the crime:

For an incident to be identified as a case of Human Trafficking, it must contain 3 elements. Was the person recruited by fraudulent means? Was the person then transported to a distant location? And finally, is there evidence to suggest that the person was exploited in another region or the country of destination?[2]

The materials then outline an interrogation and analytical procedure that is primarily focused on determining whether the person’s migration history suggests that he or she has been a victim of a trafficking offence. The majority of the evaluative ‘benchmarks’ contained in this procedure would become nonsensical if applied to an individual who had not crossed a border. For example, the officials are encouraged to use the person’s passport validity as an indicator that a trafficking offence may have occurred. The questions about the recruitment phase focus on how an individual was encouraged or coerced to leave his or her country of origin. The questions on transportation focus on whether the individual was transported across borders illegally and how; whether he or she is in possession of valid documents; and whether he or she spent time in a third country en route to South Africa. The questions about exploitation focus on the work the person has been doing since arriving in South Africa and how long after arriving in South Africa the person began this work. None of these benchmarks are presented as essential elements of a trafficking crime. However, each stylized representation of trafficking’s ‘general’ characteristics ties the crime of trafficking itself more closely into an international migration narrative. As this migration story takes centre stage, other potential variants of the crime recede into the background. In particular, the interrogation protocols do not encourage the interviewer to ask questions that might be crucial in developing a case against perpetrators of trafficking offences, such as questions about the traffickers themselves, their modus operandi, or other victims and their whereabouts.

By representing the victim as the sole analytical object of a trafficking investigation, and presenting this individual’s international migration story as the primary form of evidence to be used in the construction of a criminal case, the teaching materials criminalize mobility in a particular way. They present the victim’s act of international migration as the primary component of a criminal enterprise. In the interrogation model, the hypothetical official is encouraged to ignore the actual exploitation of the individual and the relevant signs of such exploitation, including emotional distress or physical harm. Instead, the officials are taught to focus their attention on the act of reconstructing the individual’s migration story in a way that will allow them to detect whether the characteristic ‘markers’ of trafficking (unrealistic recruitment offers, illegal entry, immediate engagement in the sex work industry) are present. In the process, migration itself, and particularly that of poor women, becomes the main object of investigative concern.

This act of objectification might have some broader rationale if it were presented in such a way that linked the purported victim back to a process of investigation of a criminal trafficking enterprise. However, the teaching materials do not provide the officials with the relevant tools to conduct further investigations or interventions. So, while the Palermo Protocol was crafted with the explicit purpose ofaiding in the detection and prosecution of transnational organized criminal networks, these materials do not suggest that officials should busy themselves with detecting and responding to the criminal conspiracies which entrap and exploit international migrants, but with looking for a broad category of persons who constitute likely victims: international migrants without documents.

  • [1] This is crucial because, while frontline officers rarely remember the broad principles or legalframeworks provided in such generic training manuals, they tend to be more directly interested in thesections which offer practical instruction on how to handle cases and workflow.
  • [2] No doubt, this is merely just a clumsy failure to adapt a boilerplate training manual to a new legalenvironment. Nonetheless, the insistence on mobility as a core component of trafficking is revealing ofthe IOM’s broader failure to contemplate other forms of relevant exploitation and abuse.
 
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