Human trafficking and challenges to States’ compliance with International Human Rights Law: The case of Brazil *

Abstract

This article identifies some challenges faced by the Brazilian State in eradicating human trafficking. International Human Rights Law is the instrument I adopt as a conceptual paradigm for analysis of the State’s conduct, arguing that Brazilian National Policy implemented since 2008 does not meet the preventative needs, the repression of perpetrators, nor victim protection as proposed by International Human Rights Law. The conduct of State powers shows that human trafficking is still conceived as a criminal offense, rather than as a human rights violation. Existing published Brazilian studies commonly approach human trafficking in terms of criminal law. I analyze it under the umbrella of International Human Rights Law, disassociating human trafficking from an exclusively feminist approach, and describing it in terms of a global human rights violation pattern related to international migration flows. I emphasize some interior legal concepts commonly overlooked by juridical doctrine, such as vulnerability and exploitation, with attention to cultural attitudes that help determine policy.

Keywords

Brazilian State policies Human Rights Law human trafficking international migration “punitive will”

Introduction

In A Minoria Próspera e a Multidão Inquieta, first published in 1993 as The Prosperous Few and The Restless Many, Noam Chomsky (1999) alerts us to the little known fact that Spain was admitted to the European Community under certain conditions, one being that Spain would serve as a barrier against the feared migration of great hordes of North Africans to Europe (p. 99). Today, going into the second decade of this century, the migration phenomenon garners much more publicity, often associated with cases of violence, deprivation, and abuse on the part of authorities and crime committed by organized groups.

In 2006, the United Nations (UN; UN Secretariat, 2006) published a study, Trends in Total Migration Stock, indicating that there are approximately 200 million migrants, worldwide. The countries receiving the largest numbers of migrants have promoted severe regulatory policies for the entry of migrants. While the new migration policies have hampered regular, legal migration, they have not reached any appreciable goal of containing the flow of migrants. Rather, obstacles imposed by current immigration policies have served to promote criminal organization around the business of immigration, such as smuggling and international trafficking in persons, or Human Trafficking, hereafter referred to as “HT.”

In accordance with Resolution I (XXIV) of the now extinct Sub-Commission for the Prevention of Discrimination and Protection of Minorities of the UN of 1971, HT would be considered as a “consistent pattern of clearly proved violations” that affects international society as a whole (Lindgren Alves, 1994: 9). At this time, HT figures as one of the 30 subjects currently under study by the UN Special Rapporteurs, along with other international issues such as terrorism, human rights of migrants, etc. Thus, for the UN, HT is a universal phenomenon and a relevant human rights violation and, therefore, an object of research and monitoring. Although the specific purposes of HT may be diverse, its effective communality is the reduction of the person to the condition of an object, hence the term “trafficking.” HT constitutes a kind of current transnational organized crime, according to the UN Convention against Transnational Organized Crime and the Palermo Protocol—the Protocol to the UN Convention against Transnational Organized Crime to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.¹ In a similar manner, Brazilian legislation provides national laws that address HT, as do other countries, since it is a global reality that affects virtually every country. Facing HT is a challenge to domestic-international policy. A comprehensive approach to the subject, which would guide the formulation of national policies, should conceive of HT as a crime and as a violation of human rights, so that action and policies taken are developed not only in terms of repression, but also geared to prevention and the protection of trafficked persons. This suggestion was part of the report of the Secretary General to the UN made during the 60th Session of the General Assembly, Globalization and Interdependence: International Migration and Development, as specified in Article 282 (UN General Assembly, 60th Session, 2006):

Given the complex nature of trafficking and the networks that organize it, several policy responses are being tried. To be effective, the anti-trafficking measures should be multi-pronged, including elements of prevention, investigation, prosecution and protection for victims. (p. 76)

My principal motive in this article is to identify some of the major challenges that this policy presents to the Brazilian State as it attempts to confront HT as it relates to Brazil and Brazilians. The Política Nacional de Enfrentamento ao Tráfico de Pessoas (The National Policy to Combat Trafficking in Persons), implemented and enforced in Brazil since 2006, creates a new institutional state paradigm in Brazil for the promotion of human rights, as well as orienting the State to assume conduct supported by international and national obligations within the scope of the protection of human rights. However, I wish to situate Brazil within the global context of migration and HT before an extended discussion of the Brazilian case.

Human trafficking: global standard of human rights violation

Migration: global outlook

The UN reported in the 2006 document Trends in Total Migrant Stock: The 2005 Revision, that, between 1960 and 2005, the number of international migrants worldwide has more than doubled, from the 75 million estimated in 1960 to nearly 191 million in 2005, with an increase of 121 million in 45 years. Overall, this study brings together some data and conclusions that show a rapid rise of migratory movements worldwide from the 1990s to the present. The direction taken by these migratory flows points to the so-called developed world, identified as a group of countries such as Australia, New Zealand, and Japan as well as those located in Europe and North America.

The acceleration of cross-border migration has become a global phenomenon. Regarding this acceleration, the British historian Eric Hobsbawn (2007: 90) noted that globalization has affected international migratory movements on an unprecedented scale, with both temporary and permanent results. Hobsbawn (2007) states that toward the end of the century, about 2.6 billion people were transported annually by the world’s airlines, which corresponds to an average of almost a plane trip per year for every two inhabitants of the planet (pp. 89–90). He adds that the large volume of mass migration globally generally occurs from poor to rich economies, and particularly to the United States, Canada, and Australia, which did not impose stricter limits on immigration. The author informs us that these countries received nearly 22 million immigrants from all over the world between 1974 and 1998, a total higher than the era of immigration prior to 1914 and two times higher than the rate of annual influx of that period.

In the years between 1998 and 2001, the United States, Canada, and Australia received an influx of 3.6 million people, while Western Europe, which has long been a region of mass emigration, received nearly 11 million foreigners during this period. Hobsbawn emphasizes the acceleration of transborder movement at the beginning of the new century (Hobsbawn, 2007: 90). From 1999 to 2001, a total of about 4.5 million people immigrated to the 15 member countries of the European Union. To cite just one example, the case of Spain, the number of foreigners living legally in Spain more than tripled between 1996 and 2003, from half a million to 1.6 million (p. 90). According to Hobsbawn (2007: 90), the large majority of these immigrants—approximately two thirds of them—come from outside the European Union, mostly from Africa and South America.

The social, economic, and cultural impact of the arrival and residence, whether temporary or permanent, of migrants in the destination countries, which are the most developed countries, has been debated in intergovernmental forums, such as the High-level Dialogue on International Migration and Development of 2006, organized by and held in the UN’s headquarters in New York. The association among poverty, migration, and development was a recurrent theme of speeches made by representatives of the nations attending the conference, many of whom pointed out that cooperation towards the development of countries with large flows of migrants would be a solution to the containment of migration.

Migration: changes in international society and HT

Funds raised by the informal work done by immigrants in foreign countries have become a major driving force for the development of peripheral countries. In 2005, capital remittances made by migrant workers accounted for three times the amount circulating in the world between rich and poor countries under the aegis of international cooperation. According to data published in World Bank, Global Economic Prospects (The International Bank for Reconstruction and Development/The World Bank, 2006: 88), the value of migrant remittances doubled from 1995 to 2005, from US$102 billion to US$232 billion, with Brazil receiving US$3.6 billion in remittances during that year. The report cautions that these are approximate values, since they do not represent the amount sent through informal channels, not reported to the State, by about 200 million migrants in the world today.

The disorderly wave of international migration brings other consequences of a somber nature, such as the large number of migrant deaths in their attempts to immigrate, as well as other human rights violations associated with human smuggling and trafficking. Organized transnational crime has exploited the growing wave of migration. As nations adopt more rigorous restriction of immigrants, alternative and illegal immigration strategies are created. As a consequence, smuggling and HT have expanded through the practices of transnational criminal networks. Moreover, upon entering a foreign territory, these people will be even more vulnerable to exploitation by criminal networks or informal labor markets. If the undocumented migrant worker was trafficked and sold to someone, he or she suffers a high degree of exploitation and deprivation in relation to minimum rights, with other implications, such as high vulnerability to drugs and varied expressions of violence.

To cite another challenge caused by international migration, I note here the diverse xenophobic reactions to these migrants in their destination countries. For Hobsbawn (2007: 89–90), the advance of xenophobia reflects the moral decay and social upheavals of the late 20th century and the present moment, as well as being inherent to large international population movements, a combination he considers “naturally explosive” (p. 92). For this reason, many countries have sought to fence off their borders and adopt tougher anti-migratory policies.

Human trafficking: configuration

Trafficking in persons: general notions

The motivations of a Brazilian, a Thai, or a Mozambican to migrate to Europe, for example, are similar: to improve their living conditions and that of their families. It is clear that the causes that have led to an increase in migration have also raised the numbers of trafficked persons. However, the increase of HT also has its source in another factor: anti-migratory policies. The urgency to overcome material lack and pursue opportunities for individual progress leads a person to be more easily enticed by networks of traffickers, who claim to dominate means to circumvent anti-migratory laws in order to place people within the foreign labor market.

Unlike the victim of smuggling, who, in general, becomes an illegal worker, even openly competing in labor markets abroad for the low cost of service offered, the trafficked person becomes invisible, reappearing only in lists of the expelled and deported. This invisibility is maintained by a number of factors. The victims are tied to criminal networks that exploit them by force, which prevents them from denouncing their oppressors to local authorities and asking for help from their consulates. But force is not the only element responsible for the maintenance and acceleration of the global market in people.

Institutes and organizations, such as the United Nations Office on Drugs and Crime (UNODC, 2004), have shown that the majority of those trafficked are female—a group made up mainly of women, but including girls—and generally work in the illegal or marginalized sex industry, an industry maintained by the complicity of its customers with those who manage it (Ausserer, 2007). The criminal networks ensure the silence of victims and of the consumers of services provided by them, thus fostering a cycle that sediments barriers preventing authorities from acting against these crimes. The low level of risk that trafficking in persons presents for criminals can also be observed in relation to the number of convictions made. In 2003, nearly 8000 traffickers were brought to justice around the world, and of these, only 2800 were convicted, according to the US government. It is therefore easy to see why part of organized crime is changing its focus from drugs and arms to trade in human beings (Organização International de Trabalho/International Labor Organization (OIT/ILO), 2006: 14).

Key concepts to HT: vulnerability and exploitation

International trafficking in people only begins at home, being consummated in the country of destination. In this sense, the vulnerability of the victim to HT moves to other causes besides the socioeconomic conditions of countries of origin. HT, and the vulnerability of the victim exploited, is reproduced in three stages: First, the victim is enticed; second, the victim is moved, and third, the victim is exploited. As previously mentioned, two other important causes for HT are allied to their invisibility: uninformed consent and forced consent, which occurs in the third stage of consummation, when the victim is exploited by trafficking networks. Reducing the vulnerability of the victim is critical not only to prevent new cases of trafficking, but also to break up ongoing criminal projects and, finally, to protect those who have been trafficked.

The Palermo Protocol (UN agreement of 2000, entered into force in 2003) also cites the concept of vulnerability for the identification of trafficking cases, noting vulnerability as one of the factors that influence trafficking, a feature that allows the criminal network to entice, ensnare, and exploit the person trafficked. Since vulnerability is an essential concept for a society to understand and face HT, and a concept integral to the laws and studies that have been devoted to HT, I would like to clarify how I understand the term.

First, what is vulnerability? Vulnerability affects the capacity of self-determination, the autonomy of a person to decide to do or not do something. The guidelines of the CNS, the Brazilian Conselho Nacional de Saúde/National Health Counsel (“Diretrizes e Normas Regulamentadoras de Pesquisas Envolvendo Seres Humanos, Resolução 196/96”, Ministério da Saúde: Conselho Nacional de Saúde, 2008) define vulnerability in the following manner: “Vulnerability—refers to the state of individuals or groups who for any reason or motive, have a reduced capacity for self-determination, especially in regard to informed consent” (p. II.15). The CNS is concerned that the question of informed consent is observed in relation to groups classed as vulnerable. Thus it is considered a matter of governmental duty that the State respect a group’s or individual’s freedom of choice regarding engagement in any such research.

When the Palermo Protocol cites vitiated or invalid consent as a condition to the consummation of HT, it refers to the condition of vulnerability as a factor that negates also the consent of the victim. Consent is nullified when given by one who is vulnerable, or incapable of making a rational decision as a result of weakness or susceptibility due to a specific injury, harm, or attack. In the case of HT, vulnerability is equated with defects that affect the expression of the will. Since the goal of trafficking is exploitation, I believe that the submission of a person to exploitation, such as forced labor, among other examples used by the Protocol, leads to the legal presumption of trafficking, if added to the other circumstances that characterize this phenomenon.

The concept of “exploitation” is linked to the theory of defects of consent—the idea that instructs the Palermo Protocol. An important source for the legal concept of exploitation can be found in the Convention no. 29 of OIT/ILO, which states,

For the purpose of this convention the term forced or compulsory labor shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. (Art. 2)

It is crucial to reflect on the concepts that inform definitions and understanding of HT, especially since there are obstacles to defining cases that are not clearly linked to illegal or clandestine activities. Some of these barriers are related to the difficulty in assigning the term to cases of trafficking by authorities or by the victims themselves. These difficulties seem to lie in the identification of a more uniform understanding of what HT is—an effort that depends on what the government, society, and the victims understand as vulnerability and exploitation. The victim of HT rarely asserts his or her vulnerability. But, would awareness of vulnerability be known in all its dimensions by the vulnerable?

Is the interference of the government to prevent HT justified within this context? Or is governmental interference acceptable when the victim is cognizant of and accepting of the transaction? Vulnerability and exploitation result from the meeting of objective factors, and is not simply a question of the judgment of the victim of HT. These objective factors are generally not willingly revealed by the victim. But just as the victim of forced labor is protected by law, the victim of trafficking must be protected, even against his/her own weaknesses. The challenge is to respect the freedom of each and still protect the person, especially when it comes to groups that, for historical and social reasons, are vulnerable.² Reflecting on the rights of the person who occupies a position of vulnerability leads us to a central dilemma: how to create conditions of equality among those who are not equal in practice, or how to establish boundaries between conduct of negative, diminishing discrimination and positive discriminatory conduct that distinguishes among groups in order to redress or prevent inequality?

In his discussion of affirmative action in Brazil, Boaventura de Souza Santos (cited in Piovesan, 2009) proposes a solution to this impasse by affirming that dignity is the measure of any response, and that equality should recognize differences when these differences do not produce inequality. Furthermore, social groups have the right to conduct themselves according to customs or traditions that might not be in agreement with what is generally considering equality, without being penalized for this.

In his rulings and written works, Professor Antônio Augusto Cançado Trindade (Tratado, 1997), a former judge and president of The Inter-American Court of Human Rights of the Organization of American States (OAS) currently sitting on the International Court of Justice in the Hague, states that International Human Rights Law clearly demonstrates its bias, which is precisely the purpose of remedying inequality or conceding reparations to injured parties.³ The concept of reparations in the field of Human Rights assumes a very broad connotation, one that fits not only the restitution of goods and monetary compensation but also the adoption of special measures that include obligations to be met by governments. In this sense, compensatory policies are, in fact, one of the public demonstrations of the rights attributed to minorities.

Institutional framework to fight human trafficking

In her first report as Special Rapporteur on Trafficking in Persons, Joy Ngozi Ezeilo (in February, see UN General Assembly, 10th session, Human Rights Council, 2009) emphasized the importance of collecting and sharing information regarding HT among agencies. Although she noted the lack of stratification for gender and age of victims in the available analyzed data, she reported consensus among the agencies concerning both the seriousness of this pattern of violation of human rights and the scale that HT has assumed as a new form of contemporary slavery affecting all countries, genders, and ages, serving agendas that exceed commercial sexual exploitation and that include other forms of forced labor.

According to the Rapporteur, unless governments and agencies acknowledge HT from the perspective of human rights, the majority of trafficking cases will continue to be underestimated, their victims left without care and traffickers unpunished (UN General Assembly, 10th Session, Human Rights Council, 2009: 7). Addressing HT as a pattern of violation of human rights signifies respect for even the minimal rights of victims in the process of coping with the traffic. In this regard, the Rapporteur stresses that mere criminal prosecution of HT is not adequate to rescue the violated rights of the victims. It is essential that trafficked persons are not treated as illegal migrants and deported before they are identified as victims (p. 14). Thus, the UN Assembly in question ruled that the rights violated in HT must include, in particular, the right to liberty; the right not to be subjected to slavery or involuntary servitude; the right not to receive cruel, inhuman treatment; the right to be free from violence; and the right to health, among others (p. 9). It verified that a large number of governments—especially those participants in the Palermo Protocol—had reformed their criminal laws, or approved anti-trafficking legislation establishing public policies related to HT.

I would like to emphasize that the Protocol considered it important that these laws be consistent with internationally recognized human rights and should be comprehensive enough to protect victims, providing them with rehabilitation and reintegration opportunities, and that such measures not be confined to border control and punishment of traffickers, which accords with the Special Rapporteur’s Report (p. 13). The report also noted some other challenges that governments would need to meet, such as international cooperation, since the HT is a phenomenon that usually occurs beyond national borders. It stressed the necessity of reaching the root causes of HT, such as the demand for cheap labor, sex tourism, endemic poverty, gender discrimination, conflicts, corruption, and the restrictive immigration policies of countries of main destination for immigrants. It further concluded that coping strategies should avoid limiting themselves to punitive aspects and focus instead on the trafficked person. The Rapporteur affirmed that one must recognize the stain on the dignity of the victims as well as their right to survival and development, asserting that international strategies and national anti-trafficking can be synthesized by the “5Ps” and “3Rs”: prevention, prosecution, punishment, protection, and promotion (international cooperation) and reparation, rehabilitation, and reintegration of victims to take a constructive role in society (p. 25).

The case of international traffic in Brazilians: profile and prevention

Brazil is one of the most representative countries of origin of trafficked persons, in terms of the size of this community or by counting identified cases of Brazilians victims abroad. In 2007, Researchers at the Centro de Estudos Sociais of the University of Coimbra, Portugal, found that the largest group of victims of sex trafficking in Portugal were Brazilian nationals, followed by women from Eastern Europe and Africa. Indeed, the profile of the Brazilian victim of trafficking has been studied by various surveys, such as the I Diagnóstico sobre Tráfico de Seres Humanos (I Diagnosis on Trafficking in Human Beings; Colares, 2004) and the PESTRAF (Pinto Leal and Pinto Leal, 2002),⁴ with discussion appearing in various academic articles (see bibliography). According to the PESTRAF survey, the predominant profile of the victim is women and adolescents of African descent (blacks or morenas) with a significant age group index of 15–25 years.

As might be expected, given the exotification of the Brazilian mulata and the much lower social and economic position of darker skinned Brazilians, race should be an important factor to consider in discussing the profile of HT in Brazil. The issue of race has been addressed in public campaigns on HT in Brazil. For example, in 1993, the nongovernmental organization (NGO) Centro de Articulação de populações Marginalizadas (Center for Articulation of Marginalized populations/CEAP) launched the first public campaign in the country on trafficking in black women.⁵ Today, although the Brazilian women who are trafficked are still mostly of African descent, their racial identity is not discussed in a specific way. The issue of race is treated as transversal. This transversal categorization implies that race is an element in all analyses, but not stressed in and of itself. There is an understandably valid argument that this manner of classification does not meet the demands for specificity and depth about the significance of race in various areas.⁶ On the contrary, the obvious complicator in racial—or color identification—is intertwined with Brazilian laws and customs regarding racial identification.⁷

In terms of economic background—regardless of the issue of color—the women universally come from the lower classes, with low levels of formal education, and live in peripheral urban places lacking sanitation and transportation (among other communal social benefits).⁸ They live with some family members, have children, and work at marginal jobs or unskilled labor. Many have already been employed in the sex industry.⁹ The debt of these women—always unpayable—may be owed to the trafficker and the brothel owner who employ them. In an article published in the Brazilian newspaper O Globo (Guilayn, 2007: 5) about Spain as the principal route for HT, Rocio Mora, attorney for the Madrid-based NGO Asociación para la Prevención, Reinserción y Atención de la Mujer Prostituida, reports, “These women come out of Brazil with a debt of € 4,000 which is constantly increasing. In addition to their passage, there are other added interests, the hair, clothes, and they still must pay to sleep and eat” (Guilayn, 2007: 5). The O Globo article goes on to show that a Brazilian prostitute earns, on average, €50 per program, with about eight programs per night. A common way to “hasten the payment of the debt” is to work as a recruiter. Thus, the money remains with the “mafia,” as the organizational structure of HT in Brazil is called.

Brazil’s Política Nacional de Enfrentamento ao Tráfico de Pessoas was instituted by Decree No. 5.948 on 26 October 2006, by the President of the Republic, Luiz Inácio Lula da Silva. It reflects a worldwide trend, and like Brazil, a number of countries have adopted special measures to cope with HT, covering dimensions such as protection, prevention, and repression. The importance of incorporating these three dimensions into policies combating HT is routine in recommendations, declarations, and resolutions adopted by international organizations, inspired by International Human Rights Law. Elaborated by representatives of the government and civil society, the Plano Nacional de Enfrentamento ao Tráfico de Pessoas (Secretaria Nacional de Justiça, 2008: 11)—a practical elaboration of the Polítical Nacional that establishes a program of action and goals—states that the goal of prevention is “to reduce the vulnerability of certain social groups to trafficking in persons and promote their empowerment, as well as devise appropriate public policies to address its structural causes.”

Taking this goal as my point of departure, I have identified several lines of preventive action. Overcoming a country’s economic inequality is a goal that lies in the field of structural causes, a goal whose effects go beyond HT. It is linked to foreign and economic policies aimed at the reduction of national poverty, as defined in goals outlined in the UN Millennium Declaration, such as reducing by half the proportion of people living on less than US$1/day.¹⁰ On this point, in 2008, the UNODC, through the Global Initiative against Trafficking (GIFT), drew attention to the need to reduce the vulnerability of the victims (Folha) (Bolduck et al., (2007)). Economic inequality and exclusion are inextricably linked to vulnerability, being an enhancer of this condition. Reducing the vulnerability of the victim is fundamental not only to prevent new cases of trafficking, but also to break up current criminal projects and, finally, for victims to be protected against possible “re-trafficking.”

I now wish to discuss preventive actions related to institutional vulnerability of the victim of HT, factors not included in discussion of structural causes. Above all, preventive action faces a particular challenge in regards to the nature of the agreement between the trafficker and trafficked, which, although unfair and harmful to the victim, has not been broken in ongoing cases of HT. Police investigating HT in Brazil, or those stationed in crowded airports, and other public officials, such as agents at information desks, tend to report suspected cases of HT. They may recognize some features common to the immigrant who is, at the least, vulnerable to HT, such as sexy flashy clothing, lack of knowledge of the language of the country, or of a known address of their destination, or they may be identified as possessing insufficient funds for their stay abroad. Obviously, this leads to a problematic kind of profiling where it could be argued that from the point of view of these travelers, approach and questioning would be considered discriminatory, and that nothing would justify banning them from leaving the country on the basis of Brazilian law. In fact, the best and most appropriate preventive action is not one that involves the approach of those who planned the trip at the airport. However, such approaches would seem to be warranted, although this has not been carried out as a regular plan of action due to many factors, including lack of clarity both about what constitutes protection to those vulnerable to HT and about definitions of vulnerability, exploitation, and the duty of the State to protect potential victims.

At a critical moment like the present, with a voluminous increase in violations of the rights of Brazilian immigrants, a much stronger preventive action seems appropriate. The Brazilian Ministry of Foreign Affairs calculates that there are approximately 1.5 million Brazilians living abroad as illegal immigrants. Considering the real possibility of HT as a factor in that statistic, and that HT may well pass through the grid of authorities in the country of destination, more control over the process of egress would seem to be called for, even if it involves positive discrimination. With this as a goal, a more comprehensive control on egress of certain groups could be put into place in order to protect them. For example, more accountability regarding contacts and addresses of destinations, work contracts, and proof of sufficient funds to live and move around, among other items, would not constitute illegal infringement of rights, but rather count as prevention policy for HT and for illegal immigration in general. Also, knowledge or familiarity with someone who has been deported or refused admission to a destination country can serve as a deterrent, especially considering the number of deportees who again try to immigrate.

The special protection for trafficked persons in Brazil: clues to policy change

Protection is due in any country, although national policies, such as in the case of Brazil, are still implemented in a predominantly repressive fashion, including the profiling according to dress and race previously mentioned. I intend to identify below some of the challenges facing the exercise of protection in Brazil. The protection of trafficked persons should be adequate to the needs and demands of special groups in vulnerable situations, as registered by the Palermo Protocol. In the case of HT, these groups are women, girls, transgenders, and sex workers, as well as migrant workers and their families. In Brazil, a country of origin of trafficked persons, guaranteeing the right to recovery, reintegration, and compensation is especially relevant to the success of protection policies. This would argue the case for further identification of the immigrant as he or she re-enters the country. There are victims who were not identified as trafficked, but as illegal immigrants, and those who were not even recognized as illegal immigrants and who have returned to Brazil voluntarily.

The identification of people who return after being trafficked, while still in the country but not before the crime is consummated, is less frequent. More common are police investigations that culminate in the arrest, in flagrante, of women members of trafficking gangs while the plane is boarding. However, I find that the greater challenge of protective action lies in the identification of trafficked persons who returned to the country. This group necessarily has a different status, namely, the deported, those refused entry, or single travelers who have voluntarily returned to the country. A significant number of trafficking victims return to their country with the status of “deported.” The return of the deported brings hardships, constraints, and violations. They are stigmatized and considered “tainted goods,” especially when it comes to women, girls, and transgender people who worked in the sex industry.

In order to attend to these issues, an operational methodology of an integrated system of protection for victims of trafficking that fulfills the purpose of the National Policy and incorporates its obligations under the Palermo Protocol should implement actions as follows:

Special reception for the deported and those refused entry: In international airports, it is possible to collect information on these cases—to explore the causes of deportation and refusal of entry, to ascertain if there are violations to be reported, and to consider demands for attention and assistance for reintegration. The tone and nature of reception of this group may facilitate the identification of trafficking cases.

Orientation and guidance: The referential network that implements what would be the Program for the Protection of Victims of HT should include temporary shelter and social service centers for victim support; a program in place to assist and protect witnesses, if desired; transfer support to return to place of origin; help for expenses incurred by inclusion into the labor market; an income-generation program; medical and psychological care; and unconditional denunciation of the criminals.

Follow-up: Long-term activity that facilitates real reintegration, particularly with respect to vulnerable groups such as women, in order that their particular situations and needs be fully considered and attended to.

For all cases of international trafficking, cooperation between national governments is essential for the prevention and repression of HT and for the protection of its victims. International cooperation will also benefit the gathering of reliable information on deportations and on identification of trafficking cases.

Repression: the crime of trafficking in person—notes by legal practitioners

As defined in the Palermo Protocol of 2003, HT is a type of transnational organized crime. The Protocol instituted a legal system appropriate to combat HT and represented a starting point toward a strengthening of a global regime for the protection of trafficked persons, adding to other international conventions on Human Rights. In a definitive manner, it dissociates the act of “trafficking” from that of “people smuggling,” provided for under the Protocol against the Smuggling of Migrants by Land, Sea and Air and also under the Convention against Transnational Organized Crime.¹¹ The Palermo Protocol remains the major international treaty dedicated to the theme of HT that not only creates obligations for governments, but also recognizes the rights of trafficked persons. Obviously, the battle against and repression of HT has as its aim the eradication of this practice, and is devoted to the punishment of the criminal who commits it. However, it is a crime reproduced as a complex social phenomenon, often including instable cultural and economic circumstances, and punishing the criminal does not prevent the continuation of criminal practice, which will be maintained despite shifts in its particular causes. Seen in this light, the punishment of the criminal must address the criminal–victim reintegration into society.

This is not a pacific perspective of the phenomenon of crime, and does not reflect the dominant ideology in Brazil, which is characterized by volúpia punitiva, loosely translated as “punitive will,” a lust for punishment as the ideal way to overcome tensions and social conflicts. The illusion of punishment as an effective method of fighting crime permeates institutions and public opinion in Brazil. This generalized attitude toward punishment applies not only to crime but also to other problems that generate social tensions and conflicts, such as poverty. Indeed, the dominant ideology in society is one that criminalizes poverty and blames victims of inequality for the situations in which they find themselves (p. 105) according to Gueraldi (2011). For example Gueraldi and Dias (2012) points out (p. 278), the proposal to limit the exercise of reproductive rights of low-income women as a means to contain poverty and the reduction of the culpable age for a minor are both subjects of common debate.¹²

Given such considerations, it is not surprising that the suppression of HT collides with obstacles of the same nature—ideologically alienated from the real mechanisms of its reproduction. What stands out in this scenario is the extent to which the victim is blamed for her or his own situation, blamed for submission to the conditions of her or his own victimization. There is a refusal to recognize the vulnerability of the victim, the involuntary nature of the victim’s submission, and subsequent reduction to the status of object. The victim is recognized as an accomplice of the perpetrators of her or his own victimization.¹³

From the perspective of human rights, human dignity is inalienable and irreducible. An approach to HT in this light includes suppression, protection and prevention of trafficking, and that it be seen not only as a crime. Laws and debate about HT should serve as a standard for judging violations of internationally protected human rights. Repression, then, must be integrated into a holistic action to confront this phenomenon, and not geared only toward the punishment of whoever assumes the role of aggressor. In this respect, repression and punishment are as important as prevention and protection—and no more relevant. Still, I believe that repression should not have the ultimate goal of punishment, but rather the reintegration of the person, the offender, and the restoration of order. Punishment is not a core activity, but instrumental, aimed at building a just and peaceful society in which human rights are respected throughout the community.

Conclusion

As has been indicated throughout this article, the dialogue—or mediation—between public debate, or opinion, and state policies regarding issues surrounding HT is one of both confrontation and irregular conciliation. While this must hold true for most countries, I would like to conclude my discussion here with several instances that exemplify Brazil’s perhaps unique way of negotiating public opinion and policy and influencing public attitude towards these issues.

In terms of official state policy, the Brazilian government has characteristically undertaken major propaganda campaigns in relation to social and health problems or crises. A case in point, Brazil’s much studied media and print propaganda to combat AIDS, which has gone from wide distribution of educational pamphlets to extremely entertaining (and sexy) TV commercials reminding sexually active citizens to use prophylactics. More recently, HT and the sexual abuse of minors has come much more visible by these same propagandizing methods. It is common to see announcements in public spaces and even in private apartment building elevators that give telephone numbers for citizens to anonymously denounce suspected cases. Although denouncement is still rather “timid,”¹⁴ one should not underestimate the importance of these measures in the formation of public opinion, and as a counteraction toward the prejudices inherent in what I have discussed as a culture marked by volúpia punitiva.¹³

Indeed, the major role in the formation and homogenization of public opinion regarding cultural and social matters is played by the Brazilian mass media—especially important given Brazil’s size, cultural, and regional diversity. Additionally, it would be difficult to find, worldwide, any avid TV-watcher who has not seen, or heard of, the telenovela, Brazilian nighttime soap operas. The high-production extravaganzas produced by TV Globo, most particularly the 9:00 p.m. telenovela, easily reach a nightly audience of over 2,400,000 households according to the IBOPE, the Brazilian institute that monitors public opinion. These serials, which may run anywhere from several months to almost a year, generally have at least one thematic nucleus devoted to an issue revolving around citizenship and human rights. The present novela, Salve Jorge (Hail St. George), hones in on the issue of HT, in this case routed from Brazil through Turkey.¹⁵ Salve Jorge also follows the Globo pattern in its demographic and geographic coverage. The story line includes gorgeous and audience-catching panoramic shots of Cappadocia and Istanbul, tracking back and forth from Turkey to high-end scenery in Rio and then to panoramic and domestic shots of the favela, Complexo do Alemão, the large slum community from which most of the trafficked women in the soap come.¹⁶

Without going into great plot detail—also because at this date, mid-April 2013, the soap is still running—the heroes among the trafficked, their relatives, the police, and army that will take down the trafficking ring are courageous although “flawed” by the emotional and relationship problems customary of TV soaps. And the major villains—who live in luxury high-rises or hotels—are psychotic to the extent that often threatens to upstage the social message. On the contrary, the circumstances of the women—and men—as they are entrapped and then pressed into sexual slavery and hard labor are treated with brutal, but non-sensationalist, realism. One could say that this is a kind of aesthetic double-message that characterizes public attitudes and audience tastes. But, most importantly, the message regarding human rights carries through. Commercial intervals are spotted with sober announcements that offer information and numbers to denounce HT. And giving some results, such as the case of a mother in the north of Brazil who, inspired and instructed by the novela, identified the case of her daughter who was trafficked through Spain.¹⁷

Although it is difficult to accurately assess the impact of Salve Jorge on public opinion, much less on governmental and judicial policy, it has made HT the most talked about concern of the moment among a general public and central to articles in the press and popular magazines. I await what effect this might have for official policy.

Footnotes

Acknowledgements

I would also like to thank Dr Damasceno for additional research assistance.

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes

Author biography

Michelle Gueraldi is a lawyer, coordinates PROJETO TRAMA (nongovernmental organization against Human Trafficking), and is a professor of International Law at IUPERJ. She holds a Master of Laws from Harvard University (LL.M. 1998). She is the co-author of the book Em Busca do Éden: Tráfico de Pessoas e Direitos Humanos, experiência brasileira (2012) and participated on the elaboration of shadow Reports for the UN Commission for Child Rights (2003–2009). She was a lawyer for the Inter-American Human Rights Court of the OAS in Costa Rica (1999), and a Visiting Scholar in the Human Rights Advocate Training Program, Columbia University, New York (1995).

References

Ausserer

(2007) Controle em nome da proteção: análise crítica dos discursos sobre otráfico internacional de pessoas. MA Thesis, Pontífícia Universidade Católica, Rio de Janeiro. Available at: http://www.maxwell.lambda.ele.pucrio.br/cgibin/db2www/PRG_0651.D2W/SHOW?Mat=&;Sys=&Nr=&Fun=&CdLinPrg=pt&Cont=10177:pt (accessed 3 March 2008).

Bolduck

Quaglia

Oliveria

(2007) Tráfico de pessoas: um alerta mundial. Folha de São Paulo, 2 October. Available at: http://www1.folha.uol.com.br/fsp/opiniao/fz0210200708.htm (accessed 12 March 2008).

Cançado Trindade

(1997) Tratado de Direito Internacional dos Direitos Humanos. Porto Alegre: Sérgio Antônio Fabris Editor.

Chomsky

(1999) A Minoria Próspera e a Multidão Inquieta (trans. Fighiera

). Brasília: Editora da Universidade de Brasília.

Colares

(2004) I diagnóstico sobre o tráfico de seres humanos: São Paulo, Rio de Janeiro, Goiás e Ceará. Brasília: Secretaria Nacional de Justiça.

Gueraldi

(2011) Young soldiers in Brazil’s drug war. In: Barrett

(ed.) Children of the Drug War: Perspectives on the Impact of Drug Policies. License: http://creativecommons.org/licenses/by-nc/3.0/deed.en_US. Available at: http://www.ihra.net/files/2011/08/08/Children_of_the_Drug_War[1].pdf

Gueraldi

Dias

(2012) Em busca do Éden: Tráfico de pessoas e Direitos Humanos, experiência brasileira. São Paulo: Editora Max Limonad.

Guilayn

(2007) Espanha é a principal rota do crime. O Globo, 25 February, 5.

Hobsbawn

(2007) Globalização, democracia e terrorismo (trans. Viegas Filho

). São Paulo: Companhia das Letras.

10.

Jornadas Transatlânticas: Uma pesquisa exploratória sobre tráfico de seres humanos do Brasil para Itália e Portugal (2011) Vienna: International Centre for Migration Policy Development (ICMPD).

11.

Leite

(2009) Filha, Mãe, Avó e Puta. Rio de Janeiro: Editora Objetiva.

12.

Lindgren Alves

(1994) Os Direitos Humanos como Tema Global. São Paulo: Perspectiva/Brasília: Fundação Alexandre de Gusmão.

13.

Ministério da Saúde: Conselho Nacional da Saúde (1998) Cadernos de Ética em Pesquisa. Available at: http://conselho.saude.gov.br/web_comissoes/conep/aquivos/materialeducativo/cadernos/caderno01.pdf

14.

Ministério da Saúde: Conselho Nacional de Saúde (2008) Diretrizes e Normas Regulamentadoras de Pesquisas Envolvendo Seres Humanos. Available at: http://conselho.saude.gov.br/index.htm

15.

Organização International de Trabalho/International Labor Organization (OIT/ILO) (2006) Tráfico depessoas para fins de exploração sexual. Brasília: OIT/ILO. Available at: http:///www.oit.org.br/sites/default/files/topic/tip/pub/trafico_de_pessoas_384.pdf

16.

Pinto Leal

(eds) (2002) Pesquisa sobre tráfico de mulheres, crianças e adolescentes para fins de exploração sexual comercial no Brasil: relatório nacional [PESTRAF]. Brasília: CECRIA.

17.

Piovesan

(2009) Ações Afirmativas no Brasil: Desafios e Perspectivas. Available at: http://aulavirtual.upo.es:8900/webct/urw/lc102116011.tp0/cobaltMainFrame.dowebct (accessed 21 January 2009).

18.

Savelsberg

(1997) Controlando a Violência: A Justiça Criminal, a Sociedade e as Lições dos Estados Unidos. Paper presented at seminar São Paulo Sem Medo, City of São Paulo, May 1997, USP/Rede Globo de Televisão.

19.

Secretaria Nacional de Justiça (2008) I Plano nacional de enfrentamento ao tráfico de pessoas. Brasília: SNJ.

20.

Singer

(1998) Direitos Humanos e Volúpia Punitiva: O Caso do Brasil. Revista USP37. Available at: http://www.revistas.usp.br/revusp/article/view/27017/28792

21.

The International Bank for Reconstruction and Development/The World Bank (2006) Global Economic Prospects: Economic Implications of Remittance and Migration. Washington, DC: The World Bank. Available at: http://wwwwds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2005/11/14/000112742_20051114174928/Rendered/PDF/343200GEP02006.pdf (accessed 25 March 2008).

22.

United Nations (UN) General Assembly, 10th session, Human Rights Council (2009) Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. Report submitted by the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo. Agenda item 3, 20 February. New York: United Nations. Available at: http://www2.ohchr.org/english/issues/trafficking/docs/HRC-10-16.pdf (accessed 6 October 2009).

23.

United Nations (UN) General Assembly, 60th Session (2006) Globalization and interdependence: international migration and development. Report of the Secretary General. Agenda item 54(c), 18 May. New York: United Nations. Available at: http://www.un.org/esa/population/migration/hld/Text/Report%20of%20the%20SG(June%2006)_English.pdf

24.

United Nations Office on Drugs and Crime (2004) United Nations Convention Against Transnational Organized Crime and the Protocols Thereto. New York: United Nations. Available at: http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf

25.

United Nations Secretariat (2006) Population Division of the Department of Economic and Social Affairs. Trends in Total Migration Stock: The 2005 Revision. New York: United Nations.