The perspectives of criminal justice and human rights offer distinct conceptual and policy frameworks for understanding and addressing trafficking, its causes, and possible solutions to the problem. At the risk of oversimplification, I will briefly outline their differences before discussing my research on ‘trafficked women’ in South Korea that shows how the human rights language has served as the “soft glove” for the “punishing fist” of the criminal justice system in anti-trafficking measures, and how most migrant workers and migrant wives avidly avoid the trafficking framework in their fight for better protection of their rights.
A criminal justice framework understands human trafficking as a problem caused by ‘bad guys’ who abuse the labour of innocent people. The criminals need to be stopped, and the state is obliged to mobilise the full strength of the law enforcement apparatus to punish the criminals. The victims need to be rescued and reintegrated into either their home or host country. If sufficient resources are invested in police, border control, and information campaigns about the dangers of falling victim to the crime, and if heavy enough penalties are imposed, then human trafficking can be controlled if not erased. Abusive and violent employers and recruiters preying on the dreams and labour of poor people are therefore the main cause of trafficking, while the state intervenes to halt such abuse and restore order. As the problem of human trafficking grows, the state needs to expand its regulatory and punitive powers accordingly. This perspective focuses on the visible violence perpetrated by clearly identifiable agents (the traffickers and their auxiliaries) on the victims. Trafficking is therefore a disruption of the normal order of things.
The human rights approach draws on international agreements and national legal provisions to go beyond the direct violations of human rights by traffickers in order to examine trafficking as a failure of states to protect and to fulfil the full spectrum of human rights—for migrants or otherwise. Human trafficking is thereby seen as rooted in global and national inequalities, regulatory regimes that make unsafe migration necessary, and the lack of adequate protections for migrants and labourers. Trafficking is thus considered a product of the current global political economic order, and the state bears partial responsibility for the range of human rights violations included within its definition.
A human rights-based approach furthermore identifies victims of trafficking as rights-bearers rather than targets of state action, and therefore have the right to be involved in decisions that directly affect them. For example, it does not render human rights protection conditional upon the victims’ cooperation with law enforcement to facilitate prosecution. Ideally, a human rights-based approach seeks to identify and empower populations who are vulnerable to human trafficking, and prevent them from engaging in unsafe migration by strengthening their capacities for claiming rights: as workers, migrants, immigrants, and citizens, for example. This is, however, what a human rights approach ideally should aspire to achieve rather than how it is practiced on the ground. Different stakeholders, including the state, deploy the language of human rights for their own interests and concerns, resulting often in a contradictory set of claims and practices that may undermine the human rights of the target population.
As an anthropologist, my research traces how states deploy global anti-trafficking discourses in different contexts, and what these anti-trafficking efforts mean to the migrants and workers who experience abuse first-hand. One key problem is the conflation of human trafficking with trafficking into forced prostitution, popularly known as ‘sex trafficking.’ This view also presumes women’s sexual victimhood and negates the possibility of sex as work. A second problem is the privileging of a criminal justice approach over a human rights-based approach, undermining the rights and capacities of migrant men and women as well as sex workers as a result.
In 1998, I began ethnographic research on Filipina entertainers in US Military camptowns in South Korea. Catering to a US military clientele in the clubs, these migrant women filled the gap left by Korean women who found better prospects outside of the camptowns. Over the next two years of my research, Korean and international nongovernmental organisations (NGOs) came to identify these women entertainers as ‘victims of international trafficking.’ Central to these women’s definition as victims of trafficking was the performance of sexual labour by some of these women—sometimes but not always under coercive circumstances. Their intimate relationships with their customers and employers, their fear of the police and immigration, and their desire for better working conditions find no place in the ‘trafficking’ narratives that highlight their powerlessness, sometimes referring to them as ‘sex slaves.’
As alarms about the trafficking of Filipinas into forced prostitution caught international attention, both the Philippines and South Korean governments tightened control on travel and visas for ‘entertainers.’ It became more difficult for the Filipinas to leave home for these jobs. In the following years, some of the women who had returned to the Philippines and wanted to work again in South Korea had to resort to more dangerous paths and less familiar destinations, placing themselves in more precarious situations.
…and South Korean anti-trafficking law
The year 2000 marked a turning point on both international and local fronts with a surge of anti-trafficking efforts, including the passage of the United Nations Protocol on trafficking and the US Trafficking Victims Protection Act. The US government also identified prostitution as a prevalent form of human trafficking and began to promote this view through the State Department.
In 2004, South Korea replaced the old ‘Prevention of Prostitution Act’ with the ‘Act on the Punishment of Procuring Prostitution and Associated Acts’ (Punishment Act) and the ‘Act on the Prevention of Prostitution and Protection of Victims Thereof’ (Protection Act). These laws led South Korea to be recognised by the US government in the 2005 TIP report as a country with ‘Best International Practices’ in combating trafficking—even though they were targeted only at prostitution. The expansion of resources for policing far exceeded that of welfare provisions (including livelihood support, welfare services, and vocational training for victims of prostitution). For example, in 2004, three new branches of the National Police Agency were created and 20,000 additional police officers were recruited for the crackdown on prostitution and locating missing children. Five times the amount of money was spent on policing than on welfare provision for “prostituted women.”
The new laws were launched with high-profile crackdowns and arrests of clients, brothel-owners, and sex workers. The laws continued to criminalise women who do not qualify as victims, such as independent sex workers. The heavier penalties of the new laws made sex workers reluctant to report abusive clients, while lives for the many who continued to work in prostitution became more difficult and precarious. Since 2004, seasonal and annual police raids take place as a demonstration of the government’s will to enforce the new laws.
How do the laws address the needs of foreign women forced into prostitution? Article 13 of the Punishment Act, titled ‘Special Provisions for Foreign Women,’ stipulates that those who file reports or are being investigated as victims of trafficking into forced prostitution would be temporarily exempted from deportation in order to file suits and claim damages. In effect, this turns foreign women into instruments of law enforcement without due protection of their means of livelihood. Even though the 2009 TIP report suggested that these victims are allowed employment, documents from the immigration department as well as local service-providers have indicated otherwise. Only a handful of foreign women have ever sought help in government shelters.
Do other migrants in South Korea fight for their inclusion in these anti-trafficking efforts? No. Neither migrant wives nor migrant workers find the language of ‘trafficking’ helpful in addressing their concerns. Female marriage migrants (migrant wives) have become a significant presence due to South Korea’s demographic crisis in the new millennium. By 2006, 11.9 percent of all marriages were international marriages, and close to 70 percent of them were marriages between Korean men and foreign women. The cultural and social isolation of these migrants, as well as their dependence on their Korean spouses for resident status, have made them vulnerable to a range of human rights violations.
However, activists from within the international marriage community protested against the use of ‘trafficking’ as a blanket term that erases their agency, instead demanding the protection of their rights as migrants and as individuals under the term “migrant women’s human rights.” Migrant workers have been organising to fight against the Employment Permit System that limits their right to change jobs and denies their right to challenge abusive working conditions. An IOM report detailed how migrant workers, who made up 70 percent of the agricultural sector, are excluded from the Labour Standards Act and have no channels of redress for the physical and sexual violence they experience. Migrant workers are much more concerned about fighting for rights than about their inclusion in the trafficking discourse.
To sum up, the exclusive focus of the South Korean anti-trafficking laws on criminalising prostitution fails to protect the rights of sex workers and renders irrelevant the human rights abuses of migrant workers. In addition, migrant wives and migrant workers resist or are otherwise uninterested in anti-trafficking initiatives, as they emphasise victimhood and criminalisation rather than the advancement of their rights. These observations make it necessary for activists and policy-makers to reconsider two major issues. First, is emphasising criminalisation and prosecution the best strategy for preventing the abuse of vulnerable populations? Secondly, what lessons could be learned from the resistance of migrant wives and migrant workers in South Korea to the anti-trafficking discourse, who instead favour institutional reforms to solidify and expand their rights?
This points to the urgent need to re-evaluate the current anti-trafficking paradigm that is fundamentally focused on fighting crimes and not protecting rights: the UN Protocol against trafficking is an optional protocol under the Convention on Transnational Organized Crime, and various national legislations are designed to punish the ‘bad guys’ rather than to protect the rights of workers and migrants. Anti-trafficking measures have aided in the aggrandisement of state powers and have done little to empower vulnerable populations. The experiences of sex workers, migrant wives, and migrant workers in South Korea are by no means unique and have echoes across national borders. If the protection of human rights is the goal, then we need to look beyond ‘human trafficking’ as a paradigm of intervention.
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