these cases, detention of trafficked victims also violates their rights to freedom of movement and liberty, and the prohibition on arbitrary detention.52
For the present purposes, it should be noted that since previous chapter focused on understanding/uncovering the definition of trafficking, this chapter only addresses problematic real-world aspects/issues around defining and identifying victims.
4.3.2.1 The Major Factual Challenges of Identification of Human Trafficking Victims
The factual complexity of identification of human trafficking victims can be formalised based on the following main challenges.
Prevalent discourse, which depicts a victim profile: in some cases, once trafficked victims are rescued, they are categorised in terms of their race, gender, class, or sexuality, according to who is ‘traffickable’.53 Human
trafficking victims are assumed to be primarily young women who are duped and forced into sex.54 Prevalent discourse is mainly based on stories manufactured by dominant anti-trafficking rhetoric, disseminated by the mass media.55 Edward Snajdr underlined in his article that the ‘master narrative of anti-trafficking’
contained the main assumptions put forward by US officials, the media and many NGOs. What he called the master narrative was ‘reproduced and disseminated’
50 Kevin Bales, Understanding Global Slavery: A Reader (University of California Press, 2005),158.
51 Gallagher, ‘Commentary to the Recommended Principles and Guidelines on Human Rights and Human Trafficking’ (n 12) 129.
52 ibid 138; Schloenhardt & Markey-Towler (n 2) 13
See UNHCR, ‘Recommended Principles and Guidelines on Human Rights and Human
Trafficking’ (n 11) guideline 1.5; International Covenant on Civil and Political Rights Resolution 2200A (XXI) of 16 December 1966 (999 UNTS 171) entered into force 23 March 1976 (ICCPR), art 9(1); the Universal Declaration of Human Rights GA Res 217 A (III), UN GAOR, 3rd Sess, 183rd plen mtg, UN Doc. A/810, 10 December 1948 (UDHR), art 3.
Note that even though detention of human trafficking victims is related to a range of
international standards and protection of rights of human beings, such as right to freedom of movement and the prohibition on unlawful deprivation of liberty, the Trafficking Protocol does not directly address this issue. Detention in the context of human trafficking cases refers the situation of ‘any person deprived of personal liberty except as a result of conviction for an offence.’ Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (A/RES/40/173), 9 December 1988.
53 Mcsherry & Kneebone (n 7) 71.
54 Mahdavi (n 8) 13.
55 Edward Snajdr, ‘Beneath the Master Narrative: Human Trafficking, Myths of Sexual Slavery and Ethnographic Realities’ (2013) 37 Dialect Anthropol 229, at 231.
4 Obligations of Protection 135 using horror stories of individual traumatised victims. Snajdr noted that
narratives are typically written in third person and lack information about the conditions under which the tales were told; victims are depicted as disembodied individuals, defined by their bodies as prostituted, violated, beaten and dead.56 These stereotypes evoke figures of women and children being snatched from their homelands and forcibly transported elsewhere.57 Victims are described as if they are fictitious characters, mostly migrant women or girls forced into
prostitution. Non-western women are reflected as typical human trafficking victims within hegemonic anti-trafficking discourses: they are presented as in need of rescue, because they are poor, uneducated, tradition-bound and
victimised.58 This kind of produced perception means that in police units, victims may be considered as an ‘undesirable other’. 59 For this reason, in some cases trafficked women may be prioritised as victims by criminal justice agencies just to fulfil stereotypes of 'innocent' victims.60 These stereotypes generate an understanding that trafficked women suffer due to dire poverty in some
developing countries, and they must always be entrapped by dark-skinned men, often with the Middle Eastern accents, who happen to be bad guys.61 The ‘iconic victim’ in this scenario is a ‘victim of sex trafficking who passively waits for rescue by law enforcement, and upon rescue presents herself as a good witness who cooperates with all law enforcement requests’.62 This is not to say that stereotypes are always based on fictitious stories or exaggerations, as in some cases a ‘stereotypical victim’ is a real/actual target; e.g., in cases of honour killings with links to sex trafficking. Nevertheless, this thesis posits that people who can be considered as victims are not only passive and helpless females, suffering coercion and deception at the hands of their exploiters, and that they
56 Bridget Anderson, Us and Them? The Dangerous Politics of Immigration Control (1st ed, Oxford University Press, 2013), 141.
57 Bridget Anderson & Julia O’Connell Davidson, ‘Is Trafficking in Human Beings Demand Driven?
A Multi-Country Pilot Study’ (2003) 15 IOM Migration Research Series 5, at 8.
58 Lucrecia Rubio Grundell, ‘Silencing The Challenging Voices of the Global ‘Subaltern’ in Anti- Trafficking Discourse’ Open Democracy (22 May 2015)
<https://www.opendemocracy.net/beyondslavery/lucrecia-rubio-grundell/silencing-challenging- voices-of-global-%E2%80%98subalterns%E2%80%99-in-antitra> accessed 1 August 2017.
59 Jo Goodey, ‘Sex Trafficking in Women from Central and East European Countries: Promoting a 'Victim-Centred' and 'Woman-Centred' Approach to Criminal Justice Intervention’ (2004) 76 Feminist Review 26, at 33.
60 ibid 33.
61 Pardis Mahdavi, ‘Commentary Migrating in The Era of Human Trafficking’ (2015) 11(2) Asian Population Studies 111, at 112.
62 Srikantiah (n 24) 187.
4 Obligations of Protection 136 should behave as such,63 but that they are not only victims of sex trafficking. As was explained, sex trafficking is only one of the outcomes of human trafficking.
Disposition and assumptions surrounding the history of trafficked victims: for instance, victims bring their misfortune upon themselves or have already given initial consent for work, or any other deal with their traffickers, which would not make them victims of a crime, although in trafficking ‘consent is rendered immaterial’.64 Especially in the cases of ‘trafficked’ migrant workers, the bias is mainly about their perceived ‘consent’. E.g., people who queue outside
recruitment offices in the hope of an opportunity to work abroad may gladly accompany recruitment brokers on journeys.65 Thus, since these people are not specifically snatched and transported as objects,66 they may not be perceived as victims. Yet once they are trafficked, they are moved as subjects, albeit
subjects whose choices are framed by limited alternative options.67 Indeed, ignorance may be a factor in making decisions such as applying for a job, moving abroad or to another city in the territory of their country of origin, and so on.
Yet victims mostly make these choices ‘based on a series of individual and macro forces structuring their circumstances’.68 Advocates and social scientists
studying the phenomena of human trafficking and indentured servitude have clearly indicated that human trafficking begins in large part with an individual who exercises some agency to improve her circumstances but then has that desire exploited.69
Indeed, in some cases, victims do not consider themselves as such, e.g., people who have been trafficked for forced labour may identify as migrant workers rather than trafficked victims.70 Brunovskis and Surtees conducted interviews with institutional representatives in Southeast Europe and victims of
63 Klara Skrivankova, Between Decent Work and Forced Labour: Examining the Continuum of Exploitation (Joseph Rowntree Foundation, 2010) <http://www.gla.gov.uk/media/1585/jrf- between-decent-work-and-forced-labour.pdf> accessed 1 December 2016.
64 Noll (n 14) 346.
65 Julia O’Connell Davidson, The Margins of Freedom -Modern Slavery the Margins of Freedom (1st published, Palgrave Macmillan, 2015), 110.
66 ibid 110.
67 ibid 110.
68 Mahdavi, Gridlock: Labor, Migration, and Human Trafficking in Dubai (n 8) 31.
69 Dina Francesca Haynes, ‘Exploitation Nation: The Thin and Grey Legal Lines Between Trafficked Persons and Abused Migrant Laborers’ (2009) 23(1) Notre Dame Journal of Law, Ethics &
Public Policy Symposium on Migration 1.
70 Tanja Bastia, ‘Stolen Lives or Lack of Rights? Gender, Migration and Trafficking’ (2006) 39(2) Labour, Capital & Society 20, at 28.
4 Obligations of Protection 137 trafficking.71 They conclude that there is a tendency to ‘pathologize women’s choices to migrate and to enter into prostitution as a means of explaining this
“deviant” behaviour’.72 In one of these interviews, they spoke to a woman who was deceived and exploited by a man whom she considered her boyfriend. The
‘boyfriend’ exploited her for prostitution, used her as a drug mule and had her videotaped when working in prostitution. The authors narrated her statement as follows: ‘I will not denounce him to the police; because I left of my own free will (…) I don’t want him to be arrested because he is not guilty in this case’.73
Identification of human trafficking victims cannot be all about ticking the boxes or judging abused victims’ stories as true or false.74 It should be primarily about recognising that victims are people with inalienable rights. There should be no intention of putting them into certain categories.
Apart from these factual challenges, there is also one challenge of a legal nature in relation to victim identification, which derives from the existing gap in
international law on victim identification and definition of victim status, as is detailed below.
4.3.2.2 The Problematic Aspect of Victim Identification in the Dimension of