At both a conceptual and policy level clear differentiation between human smuggling and trafficking has been re-iterated, most recently in the UN Convention on Transnational Organised Crime. While human smuggling can be understood as a form of assisted migration in contexts where legal migration channels are increasingly restricted, trafficking involves human rights violations ranging from kidnapping, deception to forms of debt bondage. However, while such distinctions can be made in words and law, in reality the categories are often overlapping. Anyone placing themselves in the hands of smugglers surrenders a degree of control over their fate, and for some the outcome may be being trafficked into sexual exploitation, or forms of forced and bonded labour. Further complexities emerge when, in the case of deceptive recruitment into trafficking, it is clear that women believe that the contract they are making is to be smuggled in order to take up a legitimate employment offer. Looking at the question from an other angle, while at lower levels many smugglers are small-scale operators assisting those who feel they have few options other than to illegally migrate, many are also traffickers, not only exploiting those they transport, but subjecting them to ‘dangerous and inhumane’ treatment, such as locking them in vehicles and containers without water and food for days on end.
Applying the categories of ‘forced’ and ‘free’ prostitution to trafficking has been an attempt to create space for women4 who, it is argued, choose to move countries in order to work in the sex industry. In this perspective, it is only restrictive immigration rules that ‘force’ women to resort to third parties to facilitate their journey. While not disputing that some women do choose prostitution as a source of income, there are questions that need to be asked here. This model might explain movements between neighbouring countries, but it is extremely unlikely that large numbers of women – who everyone acknowledges are coming from situations where they are unemployed and in poverty – could afford to travel between or across continents. It is also an open question how they find their way into sex markets thousands of miles away, without facilitation, or even direct recruitment. Few can arrive without considerable debts, and quite how their circumstances are different from debt bonded trafficked women, and why in this case such circumstances do not constitute human rights violations remains to be explained.
Many women's NGOs in the countries of origin, also question the notion of ‘choice’, central to the ‘free’ prostitution discourse, arguing that in a context where there is high and increasing female unemployment, sex discrimination in the labour market, routine sexual harassment for those who do have paid employment, and economies ravaged by organized crime (Global Survival Network, 1997; Radovanovic and Kartusch, 2001) the choices and options available to women are minimal.
At a policy level, the notion of ‘force’ being the definer of trafficking sits uneasily with the now widely accepted definition within the UN Optional Protocol of Trafficking in Human Beings, known widely as the Palermo Agreement. Along with force, coercion and threat, not only does the definition of trafficking include deception and human rights abuses such as debt bondage, deprivation of liberty and lack of control over one's labour, it is also applied to situations and conditions within borders. Interestingly, there are increasing suggestions that internal trafficking has strong links with cross-border trade in women (UNICEF et al., 2002). The Palermo definition calls into question the conditions in which all prostitution takes place, regardless of its legality in national law. It makes clear that trafficking is about sexual exploitation: in so doing, it implicitly sets a different set of parameters for what can constitute ‘free’ prostitution.
The UN definition concurs with the developing research base within Europe. For example, the vast majority of women interviewed in International Organization of Migration (IOM) return projects in four countries (IOM Bishkek, 2000; IOM Kosovo Counter Trafficking Unit, 2001; IOM Tajikistan, 2001; IOM Yerevan, 2001), and research by an Albanian NGO (Koci, 2000), say they were deceived about what work they would undertake, or recruited in other illegal, coercive or deceptive ways.
Exploring definitional disagreements can appear as an abstract, academic debate, but how trafficking is defined affects access to support, protection and redress and what actions are considered criminal acts. The anomalies such positions create in practice range from over-inclusive definitions that encompass all foreign women involved in prostitution, to the extremely restrictive which exclude anyone where there is no evidence of ‘force’ at the initial recruitment stage. An over-inclusive definition serves to legitimize heavy-handed law enforcement ‘clean-up’ campaigns that result in mass deportations, whilst ignoring both the traffickers and whether any nationals are being subjected to sexual exploitation. Under-inclusive definitions result in women being denied access to redress and support. For example, it appears that many law enforcement officials (and other practitioners) in the Balkans are applying the most narrow defintition, thus preventing the majority of foreign women detected accessing support services, and even subjecting many to terms of detainment and prosecution (UNICEF et al., 2002).
While Palermo has resolved the defintional debate at policy levels, as yet, very few countries who signed the convention, including the UK have translated it into national law. Within wider discussions about trafficking, and in service provision debate continues as to whether narrow or broader definitions should be used. The losers in this absence of coherent and consistent defintions are women and girls. In the context of debates amongst feminists and organizations providing services to women in the sex industry a useful conceptualization (Derks, 2000) Q1distinguishes between voluntary, bonded and involuntary prostitution, and between abusive recruitment and exploitative working and living conditions. Thus we have to look not only at how women enter the sex industry, but also the contexts and conditions within which they live and work.