COMPARATIVE TREATMENT OF HUMAN
TRAFFICKING IN THE UNITED STATES &
ISRAEL: FINANCIAL TOOLS TO ENCOURAGE
VICTIM REHABILITATION AND
PREVENT TRAFFICKING
Sarah Leevan*
INTRODUCTION
Human trafficking, the movement of persons by coercion or deception into exploitative labor or slavery-like practices, is an issue of
growing domestic and international concern.1 Labor migration is on
the rise and globalization encourages people from less developed nations
to seek better opportunities abroad.2 These people are often in a position to be victimized, and criminal trafficking networks take advantage
of this population and reap the benefits.3 Profits gleaned from human
trafficking are third behind those generated from drugs and arms.4
Human trafficking is not limited to only sexual exploitation; other
forms include factory and agricultural labor, domestic work, and other
* B.A. New York University; Candidate for J.D., Benjamin N. Cardozo School of Law. I
am grateful to Nomi Levenkron for sharing her passion for protection of all the victims of
trafficking.
1 See generally Dan Everts, Human Trafficking: The Ruthless Trade in Human Misery, 10
BROWN J. WORLD AFF. 149 (2003); Robyn Emerton, Translating International and Regional
Trafficking Norms into Domestic Reality, 10 BUFF. HUM. RTS. L. REv. 215 (2004); Theresa
Barone, The Trafficking Victims Protection Act of 2000: Defining the Problem and Creating a
Solution, TEMP. INT'L. & COMP. L.J. 17 (2003); Jennifer M. Chacon, Misery and Myopia: Understanding the Failures of U.S. Efforts to Stop Human Trafficking, 74 FoRDHAM L. REv. 2977
(2006); Jennifer Wetmore, The New T Visa: Is the Higher Extreme Standard Too High for Bona
Fide Trafficking Victims?, 9 NEW ENG. INT'L & COMP. L. ANN. 159 (2002); Sabrina Feve &
Christina Finzel, Trafficking of People, 38 HARV. J. ON LEGIS. 279 (2001); Kelly E. Hyland,
Protecting Human Victims of Trafficking: An American Framework, 16 BERKELEY WOMEN'S L.J.
29 (2001).
2 Aiko Joshi, The Face of Human Trafficking, 13 HASTINGS WOMEN'S L. J. 31 (2002).
3 Craig McGill, HUMAN TRAFFIC: SEX, StavEs AND IMMIGRATION (Vision Paperbacks
2003).
4 Moises Naim, Five Wars of Globalization, 18 AM. U. INT'L L. REV. 1 (2002). For a
general discussion of the relationship between drugs, arms, and human trafficking, see also
Melvyn Levitsky, TransnationalCriminal Networks and InternationalSecurity, 30 SYRACUSE J.
INT'L L. & COM. 227 (2003).
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slavery-like practices. 5 Governments worldwide have been slow to pass
laws and initiatives to combat the problem, instead focusing on the immigration threats of these "illegal migrants" and relying on unrelated
lesser offenses to charge the traffickers with.6 The United Nations has
attempted to respond to the problem on a global level, but its lack of
enforcement mechanisms has resulted in a series of ineffective protocols. 7 However, the United States has the finances and is in a global
position to respond effectively. It has emerged as the dominant global
force by enacting local legislation recognizing the international nature of
the problem and demanding accountability from the rest of the world.
Israel, like the United States, is home to hundreds, even thousands,
of trafficking victims. Israel's strategic and equally accessible location
relative to Africa, Europe, and Asia as well as its relatively porous border
with Egypt permits Israel to serve both as a destination and a transit
country for migrants and victims of trafficking. Additionally, both
Israel's legalized prostitution industry and Israeli social perceptions of
foreigners from third-world countries allow widespread ignorance of the
existence of sex and labor trafficking. Furthermore, Israel has a relatively prosperous economy. Much of the low-wage, low-skill employment in agriculture and construction previously filled by Palestinians is
now carried out by foreign workers. The growing elderly population in
5 See Free the Slaves, Washington, D.C., and the Human Rights Center of the University of
California, Berkeley, Hidden Slaves: ForcedLabor in the USA, 23 BERKELEY J. INT'L L. 47, 48-49
[hereinafter Free the Slaves].
Forced labor is prevalent in five sectors of the U.S. economy: prostitution and sex
services (46%), domestic service (27%), agriculture (10%), sweatshop/factory (5%),
and restaurant and hotel work (4%). Forced labor persists in these sectors because of
low wages, lack of regulation and monitoring of working conditions, and a high demand for cheap labor.
Id.
6 See U.S. DEP'T. OF STATE, TRAFFICKING IN PERSONS REPORT (2006), available at http://
www.state.gov/g/tip/rls/tiprpt/2006 [hereinafter 2006 TIP Report] (describing countries' treatment of illegal migrants and ranking countries for such treatment, among other factors). According to the 2006 TIP Report, some Tier 1 countries have yet to enact legislation. For
example, Ireland is currently drafting human trafficking legislation and victim support is exclusively delegated to NGOs, Id. Great Britain only prosecuted one forced labor trafficking case in
2005, following 343 trafficking investigations, Id.
7 See, most recently, the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, G.A.Res. 55/25, U.N. Doc. A/55/383 (Nov. 15, 2000), available at
http://www.ohchr.org/english/law/protocoltraffic.htm [hereinafter Palermo Protocol] (listing the
series over protocols over time, apparently drafted to overcome previous ineffective protocols).
See also discussion infra note 33.
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HUMAN TRAFFICKING IN THE U.S. & ISRAEL
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need of personal care also relies exclusively on foreign workers to provide
these services. s Social constructs and values among the native Israeli
population permit for severe exploitation of vulnerable foreign workers
who are unfamiliar with the Israeli legal system. In many instances,
these "foreign workers" are actually victims of trafficking. 9
This Note will examine the legal responses to human trafficking in
the United States and Israel, and the importance of creating a legal definition for victims of human trafficking. Part I will begin by highlighting the international recognition of human trafficking by the United
Nations in the 1990s. It will then illustrate various examples of trafficking in the United States, which set the stage for the United States' legislative response to human trafficking. This Note then will explore the
United States Trafficking Victim Protection Act of 2000 and its various
amendments, and will explain the role that the United States plays as a
watchdog of human trafficking around the world. The Note then explains how the United States has "encouraged" Israel to recognize the
expansive crime of trafficking in persons, and explores the Israeli legislative response to human trafficking, comparing it to the United States
statute. The paper will conclude by suggesting various improvements to
both the United States and Israeli statutory frameworks with respect to
victim assistance and rehabilitation.
I.
TRAFFICKING VICTIM PROTECTION ACT
A.
1.
Background
International Consensus
In 2000, the United Nations Member States finalized a new international law on trafficking to supplement the United Nations Convention against Transnational Organized Crime: the United Nations
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ("Palermo Protocol" or "the Protocol"). 10
The Protocol responded to the lack of a modern comprehensive international instrument to address the problems of trafficking, an issue created
8 For an excellent analysis of these issues, see Orly Lobel, Class and Care: The Roles ofPrivate
Intermediaries in the In-home Care Industriesin the United States and Israel, 24 HARV. WOMEN'S
L. J. 89 (2001).
9 Draft bill amending the Penal Code - Prohibition of Trafficking (no. 91), 2006, HH,
231, 236 [hereinafter Israeli Human Trafficking Law].
10 Palermo Protocol, supra note 7.
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by transnational organized crime rings.1" As its title indicates, the Palermo Protocol is designed to "prevent and combat trafficking," to "protect and assist the victims of such trafficking," and "to promote
cooperation among State Parties in order to meet these objectives." 2 Its
most significant achievement is the definition of trafficking in persons
as:
(a)[T]he recruitment, transportation, transfer, harboring or receipt of
persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of
a position of vulnerability or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another
person, for the purpose of exploitation....
(b) The consent of a victim of trafficking in persons to the intended
exploitation ...shall be irrelevant where any of the means set forth
13
[above] have been used.
The Protocol broadly defines exploitation to include sexual exploitation,
forced labor, slavery and similar practices, servitude, or the removal of
organs.14 Most importantly, consent is deemed irrelevant when coercion, fraud, or deception is employed to achieve the intended exploitation. 15 This definition therefore attempts to distinguish the consenting
16
migrant from the trafficking victim.
12
Id. at Art. 4.
Id. at Art. 2, Statement of Purpose.
13
Id. at Art. 3(a)-(b).
11
14 "Exploitation shall include, at a minimum, the exploitation of the prostitution of others
or other forms of sexual exploitation, forced labour services, slavery or practices similar to slavery, servitude or the removal of organs." Id. at Art 3(a).
15 Id. at Art. 3(b).
16 Id. at Art. 10 (1) (a), Art. 11 (1) (strengthening border controls). See, e.g., Bridget Anderson & Julia O'Connell Davidson, Trafficking - A Demand Led Problem? A Multi-Country Pilot
Study (Save the Children Sweden 2002) available at http://www.compas.ox.ac.uk/about/publications/Bridget/AndersonO4.pd.event=detail&id=2932 (discussing the rhetoric of criminality and
moral panic surrounding the issue of trafficking). The authors suggest that mentioning
'organized crime' alongside 'illegal immigration' is a ...potent and populist formula.
Fears and prejudices concerning 'illegal immigration' are given fresh basis (the threat
is not just that society will be 'swamped' by 'aliens', but also overtaken by 'mafia' and
other hardened criminals), and clampdowns on irregular migration are justified and
humanized (rounding up, detaining and deporting undocumented migrants takes on
new meanings when presented as rescuing, rehabilitating and reinserting the victims
of organized crime.)
Id. at 6.
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Despite the United Nations' commitment to human rights and the
apparent connection between human trafficking and human rights standards, the emphasis in the Protocol is clearly on criminalization of trafficking in persons. While the criminalization of traffickers by State
Parties is mandatory, the assistance and victim protection mechanisms
are merely aspirational. For example, victim identity protection is suggested "in appropriate cases and to the extent possible under domestic
law."' 17 The suggested human rights protections are enumerated to include housing, counseling, medical assistance, and employment
opportunities. "
2.
Frustrations in the U.S. Prior to the Victims of Trafficking and
Violence Protection Act
Cases in the 1990s involving exploitation in the United States
amounting to servitude provided incentive for Congress to propose
comprehensive anti-trafficking legislation.19 In 1995, Immigration Officials identified seventy-two Thai women held behind barbed wire and
forced to work "as virtual slaves" in El Monte, California.2" Prosecutors
learned that these women had been lured from Thailand by false
promises of "a better life," and had been imprisoned by armed guards
"to toil long hours for subminimum wages."21 Then, in 1997, the New
York Police Department discovered a scheme involving the exploitation
of deaf Mexicans, forced to peddle and beg on the streets of New York
for the profit of their traffickers.2 2 Prosecutors relied on violations of
immigration laws, involuntary servitude, and criminal conspiracy to
prosecute the offenders. Civil suits were also filed alleging labor law and
civil rights violations and claims under the Racketeer Influenced and
17 Palermo Protocol, supra note 7, Art. 6.
18
Id. at Art. 6(3); Art. 7.
19 See Joshi, supra note 2, 38-39; Trafficking of Women and Children: Hearing Before the S.
Foreign Relations Comm. Subcomm. on Near Eastern and South Asia Affairs, 106th Cong. 44-45
(2000) (testimony of Bill Yeomans, Chief of Staff, Department of Justice Civil Rights Division
and comments of Sen. Paul Wellstone and Sen. Sam Brownback).
20 James Sterngold, Agency Missteps Put Illegal Aliens at Mercy of Sweatshops, N.Y. TIMES,
Sept. 21, 1995, at Al.
21 Ian James, Freed Thai Workers File Lawsuit; Labor: Charges by 64 Former Sweatshop Laborers Include Involuntary Servitude, False Imprisonment, and Civil Rights Violations, L.A. TIMES,
Sept. 6, 1995, at B3.
22 Ian Fisher, U.S. Indictment Describes Abuses of Deaf Mexican Trinket Sellers, N.Y. TIMES,
Aug. 21, 1997, at Al.
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Corrupt Organization Act ("RICO").23 The discovery of such cases
where vulnerable migrants were exploited while criminal rings reaped
financial windfalls made clear the law's inability to impose appropriately
severe penalties on the ringleaders. These and similar discoveries became the impetus for an overhaul of the law.2 4
B.
The Act
Tens of thousands of human beings are trafficked into the United
States annually. 2 5 In 2000, the Trafficking Victims Protection Act was
passed as an attempt to address this problem,2 6 supplemented by the
Trafficking Victims Protection Reauthorization Act in 2003,27 and further amended by the Trafficking Victims Protection Reauthorization Act
of 2005 ("TVPA" or "Act"). 28 The current version of the Act is codified
in various sections of the United States Code ("the Code"). The Code
declares that the trafficking of persons constitutes violations of numerous types of laws. 29 It recognizes that pre-TVPA legislation and law
enforcement in the United States and abroad is insufficient, and that
23 Julie A. Su, Making the Invisible Visible:
GENDER RACE & JUST. 405, 408-410 (1998).
The Garment Industry's Dirty Laundry, 1 J.
Concern over the crime and immigration elements of trafficking ultimately motivated the
U.S. government to develop a new international legal framework. See Free the Slaves, supra note
5 at 69. See also Chacon, supra note 1, at 2987-89.
25 Compare Amy Richard O'Neill, International Trafficking in Women to the United States: A
24
Contemporary Manifestation of Slavery and Organized Crime iii (2000), available at http://
www.cia.gov/csi/monograph/women/trafficking.pdf (estimating that between 45,000 and
50,000 women and children are trafficked annually to the United States), and U.S. Dep't of
Justice, Assessment of U.S. Activities to Combat Trafficking in Persons 194 (2003) available at
http://www.usdoj.gov/crt/crim/wetf/us assessment.pdf, (estimating that 14,500 to 17,500 people are trafficked annually into the United States).
26 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114
Stat. 1464 (codified as amended in scattered sections of 8,
ter TVPA].
27 Trafficking Victims Protection Reauthorization Act
Stat. 2878 (codified as mended in scattered sections of 8,
28 Trafficking Victims Protection Reauthorization Act
18, 22, 27 and 42 U.S.C.) [hereinafof 2003, Pub. L. No. 108-193, 117
18, and 22 U.S.C.).
of 2005, Pub. L. No. 109-164, 119
Stat. 3558, (codified in scattered sections of 18 and 22 U.S.C.) [hereinafter 2005 TVPRA].
Among its proposed aims is an increased focus on labor trafficking. Id. at 2.
29 22 U.S.C. § 7101(b)(10) (2006) ("Trafficking also involves violations of other laws, including labor and immigration codes and laws against kidnapping, slavery, false imprisonment,
assault, battery, pandering, fraud, and extortion"); Trafficking of Women and Children in the
InternationalSex Trade: HearingBefore the Subcomm. on Int'l Operationsand Hum. Rts. of the H.
Comm. on Int'l Rel., 106th Cong. 60-72 (1999) (testimony of Harold Hongju Koh, Asst. Sec'y
of State, Bureau of Democracy, Human Rights and Labor, U.S. Dep't of State). Trafficking is a
"criminal problem, an economic problem, [and] an immigration problem." Id.
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HUMAN TRAFFICKING IN THE U.S. & ISRAEL
779
trafficking offenses are generally punished under a myriad of unrelated
laws that usually apply to lesser offenses and therefore have more lenient
sentences.
30
Although laws may exist to punish traffickers, such laws fail to also
protect victims. Following the abuse at the hands of traffickers, victims
are often treated as illegal immigrants in the destination country, causing them to be "repeatedly punished more harshly than the traffickers
themselves." 31 This double punishment is inappropriate, particularly
considering the victims' status as outsiders, their fear of removal, and
their lack of familiarity with local law and language.3 2 The United
States and the international community have recognized the human
rights violations endemic to human trafficking, and have condemned
such abuse.3 3 A comprehensive international response to trafficking in
persons will require joint efforts to both prosecute and punish traffickers
while at the same time protecting victims. 34 The TWPA attempts to
take on this charge by committing to work on a bilateral and multilat35
eral level to abolish trafficking globally.
30 22 U.S.C. § 710 1(b)(14). Prior to the passage of the TVPA:
existing legislation and law enforcement in the United States and other countries are
inadequate to deter trafficking and bring traffickers to justice, failing to reflect the
gravity of the offenses involved. No comprehensive law exists in the United States
that penalizes the range of offenses involved in the trafficking scheme. Instead, even
the most brutal instances of trafficking in the sex industry are often punished under
laws that also apply to lesser offenses, so that traffickers typically escape deserved
punishment.
TVPA, supra note 26, at § 102(b)(14).
31 22 U.S.C. § 7101(b)(17).
32 22 U.S.C. §§ 7101(b)(19)-(20). Victims of severe forms of trafficking should not be
inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as
a direct result of being trafficked, such as using false documents, entering the country without
documentation, or working without documentation.
33 The international community has repeatedly condemned slavery and involuntary servitude, violence against women, and other elements of trafficking, through declarations, treaties,
and United Nations resolutions and reports. See Universal Declaration of Human Rights, G.A.
Res. 217A, U.N. GAOR, 3d Sess., 183rd plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948) to the
Protocol to Prevent, Suppress and Punish Trafficking in Persons, supra note 7. See also TVPA,
supra note 26; Trafficking Persons Protection Reauthorization Act of 2003, supra note 27; 2005
TVPRA, supra note 28.
34 "The law clearly specifies that those caught up in trafficking and forced labor should be
recognized as victims of a crime rather than treated as unauthorized migrants who must be
returned to their countries of origin." Free the Slaves, supra note 5 at 70.
35 On the international level, the 2005 amendments authorize a joint State Department/
United States Agency for International Development study of trafficking problems in situations
of post-conflict and humanitarian emergency assistance, and require increased monitoring of
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Chapter 77 of the United States Code, entitled "Peonage, Slavery
and Trafficking in Persons," was also amended by TVPA to recognize
various forms of trafficking and to increase related sentences.3 6 As
amended, the code imposes a penalty for peonage of up to twenty
years.3 7 It also provides for life imprisonment and for a fine if aggravating factors are present.3 1 Similarly, the Act increases the maximum penalty for kidnapping with the intent that the victim be sold into servitude
or persuasive behavior resulting in travel with the intention of slavery
from ten to twenty years.3 9 The penalty for willfully holding someone
or selling someone into involuntary servitude is also increased from ten
to twenty years. 4"
Forced labor was added to the Act in 2000. 4" The Act applies a
maximum penalty of twenty years to anyone:
who knowingly provides or obtains the labor or services of a person(1) by threats of serious harm to, or physical restraint against, that
person or another person;
(2) by means of any scheme, plan, or pattern intended to cause the
person to believe that, if the person did not perform such labor or
forced labor in countries that do not comply with minimum standards for the elimination of
trafficking. 2005 TVPRA, supra note 28.
36 18 U.S.C. §§ 1581-1593 as amended Sept. 13, 1994, P.L. 103-322, Title XXXIII,
§ 330016(i)(K), 108 Stat. 2147; Sept. 30, 1996, P.L. 104-208, Div C, Title II, Subtitle B,
§ 218(a), 110 Star. 3009-573; Oct. 28, 2000, P.L. 106-386, Div A, § 112(a)(1), 114 Star.
1486.
37 18 U.S.C. §1581(a).
Whoever holds or returns any person to a condition of peonage, or arrests any person
with the intent of placing him in or returning him to a condition of peonage, shall be
fined under this title or imprisoned not more than 20 years, or both. If death results
from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual
abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned
for any term of years or life, or both.
Id.
38
Id.
18 U.S.C. § 1583 provides that
Whoever kidnaps or carries away any other person, with the intent that such other
person be sold into involuntary servitude, or held as a slave; or
Whoever entices, persuades, or induces any other person to go on board any vessel or
to any other place with the intent that he may be made or held as a slave, or sent out
of the country to be so made or held-Shall be fined under this title or imprisoned
not more than 20 years, or both.
40 18 U.S.C. § 1584.
41 18 U.S.C. § 1589.
39
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HUMAN TRAFFICKING IN THE U.S. & ISRAEL
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services, that person or another person would suffer serious harm or
physical restraint; or
(3) by means of the abuse or threatened abuse of law or the legal
process.
42
The term "serious harm" in this section has been interpreted to include
subtle psychological methods of coercion. 43 However, the TVPA definition of trafficking does not expressly exclude the victim's consent as a
relevant factor.4 4
Although the forced labor provision 4 5 only recognizes those who
knowingly "provide or obtain the labor or services," all intermediaries in
the trafficking network are subject to a fine and twenty years of imprisonment. 4 6 Additional fines and life imprisonment shall be imposed if
death results or if there are other aggravating circumstances. 4 7 Anyone
who confiscates or destroys immigration documents with the intent to
violate any of the abovementioned subsections, and actually does violate
any of the above subsections is subject to a fine, imprisonment, or both.
The same penalties apply to anyone who prevents the movement of a
48
victim of a severe form of trafficking
The Act also provides civil remedies against those who knowingly
obtain forced labor,4 9 intermediaries in trafficking transactions, 5 ' and all
42
Id.
U.S. v. Bradley, 390 F.3d 145 (ist Cir. 2004) (affirming conviction under section 1589
where defendants lured Jamaican laborers to New Hampshire through fraud, mistreated them,
and coerced them to stay).
44 22 U.S.C. § 7102. See also Chacon, supra note 1, at 3000. Senator John Cornyn (RTX), for example, has expressed the view that unless people were "duped" into entering the
country, they cannot qualify as victims of trafficking at all. See also Michael Hedges, Texans Tell
of Trafficking Horror, Hous. CHRON., July 8, 2004, at 5A.
45 18 U.S.C. § 1589.
46 18 U.S.C.
1590.
43
Whoever knowingly recruits, harbors, transports, provides, or obtains by any means,
any person for labor or services in violation of this chapter shall be fined under this
title or imprisoned not more than 20 years, or both. If death results from the violation
of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or the attempt to commit aggravated sexual abuse, or an attempt
to kill, the defendant shall be fined under this title or imprisoned for any term of years
or life, or both.
Id.
47
Id.
48
18 U.S.C. § 1592.
18 U.S.C. § 1589.
18 U.S.C. § 1590.
49
50
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knowing participants in the trafficking of children.5 1 The knowledge
standard is lower than the intent standard required in the abovementioned sections. 5 2 Furthermore, it would appear that when large companies contract out to smaller companies to5 3find and hire labor, even the
knowledge standard is difficult to prove.
The most victim-friendly provision of the TVPA requires the court
to affirmatively order that the defendant pay restitution in the full
amount of the victim's losses to the victim, as well as other civil or
criminal penalties authorized by law.5 4 The statute defines the full restitution as "the greater of the gross income or value to the defendant of
the victim's services or labor or the value of the victim's labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act. " 55 Despite the existence of this provision, victims
often do not receive any restitution. This is either because the defendant has no funds to pay them with (after his property has been captured by the United States government) or because a settlement is
reached prior to the defendant's conviction. 56 This precludes the victim
from collecting on the settlement because the Act provides for the forfeiture of the property used to facilitate the commission of any trafficking
violation. 57 Although the Congressional Human Rights Caucus5 8 proposed an express provision in the Trafficking Protocol on the use of
51 18 U.S.C. § 1595(a). An individual who is a victim of a violation of sections 1589, 1590,
or 1591 of this chapter [18 USCS § 1589, 1590, or 1591] may bring a civil action against the
perpetrator in an appropriate district court of the United States and may recover damages and
reasonable attorneys fees.
Id. See U.S. v. Julian, 242 F.3d 1245, 1247 (10th Cir. 2001)(quoting § 2259(b) of the
TVPA supra notes 26-28). See also Free the Slaves, supra note 5,
In cases in which prosecutors win convictions, survivors are able to use a criminal
judgment to establish their claims once the criminal proceeding is concluded. Even if
federal criminal charges were never filed, survivors now may file suit in a federal court
and thus avoid relying on state laws that may not be tailored to address forced labor
and trafficking violations.
Id. at 86.
52 18 U.S.C. §§ 1583 and 1584.
Perhaps the "willful blindness" standard advocated in S. REP. No. 433, 99th Cong., 2d
Sess. at 1 (1986) for domestic money laundering, would be a better standard for trafficking
crimes, broadening the net to catch various manpower agencies.
53
54
18 U.S.C.
1593.
55 18 U.S.C.
1593(b).
56 Free the Slaves, supra
note 5, at 86.
57 18 U.S.C. § 1594 states:
(c) (1) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
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HUMAN TRAFFICKING IN THE U.S. & ISRAEL
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confiscated assets to provide compensation to victims, the TVPA does
not include such a provision. 9 Congress demonstrated its commitment
to fighting human trafficking when it established a new bureaucracy, the
Interagency Task Force to Monitor and Combat Trafficking ("Task
Force")" ° exclusively for this purpose. Members of the Task Force are
appointed by the President 6' and are responsible for measuring and evaluating the progress of other countries in the areas of prevention, protection, assistance to victims, and prosecution of and enforcement against
traffickers. 2
In addition to requiring the monitoring of foreign compliance with
prevention, protection, and prosecution standards, the Act also recognizes the direct correlation between economic disenfranchisement and
victimization, and thus provides for international economic initiatives to
enfranchise vulnerable populations and to prevent trafficking in the
source country.6 3 Although an entire section of the Act is exclusively
(A) Any property, real or personal, used or intended to be used to commit or to
facilitate the commission of any violation of this chapter [18 USC §§ 1581 et
seq.].
(B) Any property, real or personal, which constitutes or is derived from proceeds
traceable to any violation of this chapter [18 USC %. 1581 et seq.].
(2) The provisions of chapter 46 of this title [18 USC §§ 981 et seq.] relating to civil
forfeitures shall extend to any seizure or civil forfeiture under this subsection.
Id.
58 The Congressional Human Rights Caucus was founded in 1983 by Congressman Tom
Lantos and Congressman John Edward Porter the (CHRC) and has since become a leading voice
in Congress on human rights issues. It is open to every Senator and House Member of the US
Congress. Congressional Human Rights Caucus, available at http://www.lantos.house.gov/chrc/
(last visited November 25, 2007).
59 See Jordan, Human Rights or Wrongs: The Strugglefor a Rights-basedResponse to Trafficking
in Human Beings, 10(1) GENDER AND DEV. 28, 33-34 (2002).. See also UNHCHR Trafficking
Guidelines, Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council, U.N. Doc. E/2002/68/Add.1 (2002), at Guideline 4(4).
60 22 U.S.C. § 7103.
61
Id. at (b).
62 Id. at (b)(2). To combat the problem of trafficking, President Clinton developed a threetiered strategy focused on prevention, protection, and assistance for trafficking victims, and prosecution and enforcement against traffickers. This anti-trafficking policy framework is part of a
broad commitment by the U.S. government to eliminate violence against women around the
world. See Presidential Directive on Steps to Combat Violence Against Women and Trafficking
in Women and Girls (March 11, 1998), available at http://www.state.gov/r/pa/ho/pubs/
8523.htm.
63 22 U.S.C. § 7104. Economic initiatives to deter trafficking include microcredit lending
programs, training in business development, skills training and job counseling, and education
programs for women and girls. 22 U.S.C § 7104(a)(l)-(4). This section seems to recognize the
motivating factors of trafficking.
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dedicated to protection and assistance for victims both abroad and in
the United States,6 4 the protections are limited to victims of severe
forms of trafficking. Such victims are entitled to the same benefits
granted to refugees, irrespective of their immigration status, including
access to programs funded by the Secretary of Health and Human Services and any relevant services under any federal or state program.6 5
The victim is certified for such services once it is established that he is:
willing to assist in every reasonable way in the investigation and prosecution of severe forms of trafficking in persons, has made a bona fide
application for a [T] visa . . . and is a person whose continued presence in the United States the Attorney General.. .is ensuring in order
to effectuate prosecution of traffickers in persons.66
The Act vaguely defines minimum standards that indicate serious and
sustained efforts to eliminate trafficking in persons.6 7 Such standards
include protection of victims of severe forms of trafficking, "including
provisions for legal alternatives to their removal to countries in which
they would face retribution or hardship, ' 68 and "progress in eliminating
severe forms of trafficking when compared to the assessment in the previous year."6 9 Significant efforts depend upon:
(A) the extent to which the country is a country of origin, transit, or
destination for severe forms of trafficking;
(B) the extent of noncompliance with the minimum standards by the
government and, particularly, the extent to which officials or employees of the government have participated in, facilitated, condoned, or
are otherwise complicit in severe forms of trafficking; and
(C) what measures are reasonable to bring the government into compliance with the minimum standards in light of the resources and capabilities of the government.7 °
64 22 U.S.C. § 7105.
22 U.S.C. § 7105(b)(1)(A).
Note that the victim is not required to testify to remain in the United States; however, his
visa shall be effective only for so long as the Secretary of Homeland Security determines that the
continued presence of such person is necessary to effectuate prosecution of traffickers in persons.
The Attorney General does have authority to permit the victim's continued presence in the
United States indefinitely. 22 U.S.C. §7105(e)(i)(I)(aa)-(bb).
67 22 U.S.C. § 7106(a).
68 Id. at (b)(2).
69 Id. at (b)(10).
70 22 U.S.C. § 7107(b)(4)(A)-(C).
65
66
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HUMAN TRAFFICKING IN THE US. 6- ISRAEL
785
The United States' evaluation of each country's compliance is documented in the annual Trafficking in Persons Report ("TIP Report" or
"Report"). 7 1 The Report provides for a ranking based on the Committee's subject analysis of each country's compliance efforts. 72 If it is determined that foreign governments fail to meet the minimum standards,
the United States can coerce them through the use of economic sanctions. 73 In 2006, President Bush decided to cut certain funding for fiscal year 2007 to Burma, Venezuela, Zimbabwe, Cuba, the Democratic
People's Republic of Korea, Iran, and Syria until those governments either comply with the minimum standards, or make significant efforts to
comply. 74 President Bush denies political motivations for these
sanctions.
75
71 2006 TIP Report, supra note 6.
72
Id. at 28.
Countries whose governments fully comply with the Act's minimum standards receive
Tier 1 status. Countries whose governments are making significant efforts to bring
themselves in compliance with the minimum standards receive Tier 2 ranking, or Tier
2 Watch List ranking if (a) the absolute number of victims of severe forms of trafficking is significant or increasing; or (b) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking from the previous year; or (c) the
determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take
additional future steps. Countries that fail to make significant efforts to bring themselves into compliance with the minimum standards for the elimination of trafficking
in persons, per U.S. law receive Tier 3 rankings.
Id. at 29.
73 See 2006 TIP Report, supra note 6, at 28,
A country that fails to make significant efforts to bring itself into compliance with the
minimum standards for the elimination of trafficking in persons, per U.S. law, receives a "Tier 3" assessment in this Report. Such an assessment could trigger the
withholding of non-humanitarian, non-trade-related assistance from the United States
to that country.
Id. For discussion of U.S. use of sanctions for international compliance with trafficking in
persons, see Janie Chuang, The United States as Global Sheriff. Using UnilateralSanctions to Combat Human Trafficking, 27 MICH. J. INT'L. L. 437 (Winter 2006).
74 Press Release, Office of the Press Secretary, Presidential Determination with Respect to
Foreign Governments' Efforts Regarding Trafficking in Persons (Sept. 27, 2006), available at
http://www.state.gov/g/tip/rls/prsrl/73440.htm ("The President also determined, consistent with
the Act's waiver authority, that provision of all bilateral and multilateral assistance to Saudi
Arabia, Sudan, and Uzbekistan that otherwise would have been cut off would promote the
purposes of the Act or is otherwise in the national interest of the United States.").
75
Id.
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C.
[[Vol. 6:773
Trafficking in Persons Report
1.
In General
The Department of State is required by law to submit a Report
each year to Congress regarding foreign governments' efforts to eliminate severe forms of human trafficking. 76 The Report serves to "raise
global awareness, to highlight the growing efforts of the international
community to combat human trafficking, and to encourage foreign governments to take effective actions to counter all forms of trafficking in
persons. ' 77 The Report emphasizes the benefits that can be reaped from
international information sharing and partnering. 78 The 2006 Report
focused on those countries that failed to comply with the minimum
standards for the elimination of trafficking and that did not make significant efforts to bring themselves into compliance, specifically in respect
of trafficking of forced labor, including the trafficking of women into
79
domestic servitude.
2.
2006 Trafficking In Persons Report-Israel
The 2006 Report identifies Israel as a "destination country for lowskilled workers from the People's Republic of China, Romania, Jordan,
Turkey, Thailand, the Philippines, Nepal, Sri Lanka, and India who migrate voluntarily for contract labor in the construction, agriculture and
health care industries. ' 80 The Report focuses on involuntary servitude
in these industries and labor recruitment agencies, which encourage
debt bondage situations.8 1 According to the Report:
Israel is placed on Tier 2 Watch List 8 2 for its failure to provide evidence of increasing efforts to address trafficking, namely the conditions of involuntary servitude allegedly facing thousands of foreign
migrant workers... Israel should extend the scope of its anti-trafficking law to criminalize labor trafficking... Israel should immediately
take steps to adequately punish... the perpetrators of labor trafficking
crimes occurring in Israel. The government should also more vigorously enforce existing bans against charging recruitment fees and with76
2006 TIP Report, supra note 6, at 1.
77 Id. at
Id.
79 See
80 Id.
81 Id.
82 See
5.
78
22 U.S.C. §7112. See also 2006 TIP Report, supra note 6, at 1.
at 128.
at 144-45.
discussion of the method by which countries are placed into tiers, supra note 72.
2008]
HUMAN TRAFFICKJNG IN THE U.S. & ISRAEL
787
holding passports, factors that contribute to the trafficking of
83
workers.
The Report's determination is based on the "uneven and inadequate"
law enforcement efforts undertaken by the Israeli government, contrasting the conviction and long prison sentences of thirty-one sex traffickers
with administrative fines and mere months of imprisonment faced by
employers and manpower recruiting agencies charged with violation of
labor laws. 8 4 Another significant contrast is the lack of protection services provided for victims of labor trafficking (including the failure to
provide shelter and the lack of access to free legal assistance).8 5 The
Report emphasizes both the lack of comprehensive labor trafficking legislation and the scope of labor trafficking in Israel to reach its conclusion
that the human trafficking phenomenon requires greater attention.8 6
II.
UNITED STATES ROLE IN ISRAELI TRAFFICKING LEGISLATION
The State Department estimates that trafficking is a $9.5 billion a
year industry.8 7 During fiscal year 2004, the United States provided
$82 million to foreign governments and NGOs in an effort to fight
trafficking on the international level. 8 8 While the international economic programs designed to fight trafficking are certainly commendable, these economic incentives are tiny in comparison to the massive
problems of poverty and exploitation that give rise to trafficking.
In addition to financial aid, the United States encourages foreign
compliance with its Model Trafficking Law through the threat of sanctions.8 9 The perception of Israel within the international community
and the threat of sanctions were the main motivations for Israel's development of anti-trafficking legislation.9" The new legislation is arguably
83
2006 TIP Report, supra note 6, at 145.
84
86
Id. at 145-46.
Id.
Id.
87
Id. at 13.
88
U.S. DEP'T OF STATE, TRAFFICKING
85
IN
PERSONS REPORT, 1 (2005), available at http://
www.state.gov/g/tip/rls/tiprpt/2005/.
89 See Chuang, supra note 73. For a discussion of sanctions, see supra note 75; see also infra
note 91.
90 In response to the 2001 TIP report, the Israeli Parliamentary Inquiry Committee met "in
the wake of fear of economic sanctions as a result of the publication of the State Department's
report putting Israel on the 'blacklist' of countries that traffic in human beings." DK (2001)
Special Session. Interestingly, the TIP Report criticizes Israel's treatment of voluntary "foreign
788
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based on what Israel perceives to be the expectations of the United
States government. These externally-imposed standards resulted in the
creation of a law that may not be location-specific or appropriate. In
her article, Janie Chuang argues that "'norm internalization'-the process by which international norms are internalized into domestic legal
structures-results from a vertical dynamic through which a variety of
transnational actors (e.g., IGOs, NGOs, and private citizens) repeatedly
interact with each other and produce an interpretation or enunciation of
an applicable international norm."9 ' Gradually this interpretation becomes internalized into states' domestic values and processes. 92
III.
ISRAELI TRAFFICKING LEGISLATION
A.
Sex Trafficking
1.
Victims
Prostitution is legal in Israel9 and thousands of women are trafficked into Israel every year to work in the sex industry. 94 Most trafficking victims come from the former Soviet Union 95 and are in their midtwenties. 96 Some women are promised jobs in the entertainment industry, while others agree to engage in prostitution, unaware of the conditions that await them. 97 Since most trafficking victims and foreign
migrants," despite the United States' position on victims' consent and its role in transmuting the
trafficking crime into a smuggling crime, Id. See also U.S. DEP'T. OF STATE, TRAFFICKING IN
PERSONS REPORT (2001), available at http://www.state.gov/g/tip/rls/tiprpt/2001.
91 Chuang, supra note 73, at 461 (discussing Harold Hongju Koh's analysis of "norm internalization" from Harold Hongju Koh, Why Do Nations Obey InternationalLaw?, 106 YALE L. J.
2599 (1997)).
92 Chuang, supra note 73, at 461.
93 Penal Code, 5737-1977, 7 LSI 31 (1977-78) (lsr.). Sections 199-209(g) define various
prostitution-related crimes, but soliciting and engaging in prostitution is not included in this
list. Demand for prostitution, which is high among religious Jews, Arabs and foreign workers, is
arguably a major pull factor for trafficking victims. Nomi Levenkron & Yossi Dahan, Women as
Commodities: Trafficking in Women in Israel, HOTLINE FOR MIGRANT WORKERS (2003) [hereinafter Women as Commodities]. Although operating a brothel is illegal, in practice, brothels are
only investigated if related to complaints of nuisance or felony investigations. Penal Code,
5737-1977, 7 LSI 31 (1977-78) (lsr.) at §§ 204-205.
94 Women as Commodities, supra note 93, at 19 (citing various estimates including arrested
trafficking victims, NGO estimates, and police estimates).
95 Id. at 33. Seventy-eight percent of traffickers are Israelis from the former Soviet Union.
Their familiarity with the victims' countries of origin, knowledge of the local languages, and ties
to other forms of organized crimes in Israel and abroad facilitate recruitment of the victims.
96 Id. at 20.
97 Id. at 13.
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789
prostitutes enter the country illegally, either crossing the border through
Egypt 98 or using false identity documents, there is a broad social consensus that victims are criminals. However, by the Palermo Protocol definition, these women are also often victims of trafficking, despite their
apparent consent, because of the conditions the women face upon arrival9 9 and their overall vulnerability.10 0
2.
Law
Prior to this comprehensive sex trafficking legislation, Israeli law
prohibited some trafficking-related offenses.' 1 In response to the growing problem of sex trafficking in Israel and pressure from the United
States following the enactment of the TVPA, Israel enacted legislation
for victims of sex trafficking in 200002 and 2002,113 guaranteeing the
victims various benefits. 0 4 For example, the victims of sex trafficking
are entitled to stay in Israel in a shelter pending the criminal prosecution
of their traffickers.' 015 The Law also allows for a one year visa and work
employment authorization for victims."0 6 A new procedure allows the
Minister of the Interior to extend the one year visa.'0 7 Although the
discretionary standard is "secret," eligible victims have testified in the
criminal prosecution of the traffickers and have exhibited good behav98
Id. at 12. Women are smuggled across the Egyptian borders along with arms and migrant
workers.
99 Id. at 22. Women are "sold" upon their entrance to Israel, and then must pay back their
smuggling and purchase debt to gain freedom. In order to do this, they are often locked inside
brothels and apartments and forced to receive up to thirty clients a day, every day. Id. at 33.
100 Victims may lack knowledge of Hebrew, the country and its laws, and often have no
passports or other identifying documents.
101 Such prohibitions included pimping, soliciting, rape, assault, forced labor, and passport
retention. See various sections of the Penal Code, 1977, S.H. [hereinafter Penal Code]; The
Women's Equal Rights Law, 1951, § 6(); Courts Law, 1984, [consolidated version], § 68.
102 Amendment 56 to the Penal Code, supra note 101, at § 203(i)(a).
103 Anti-Trafficking Bill, (no. 3571), 2002,
HH, 12.
104 Various Sections of the Entry to Israel Law, 5763-2003, LSI (Isr.) [hereinafter Entry to
Israel Law]; see also Penal Code, supra note 10 1.
105 According to the Entry to Israel Law, Article I Exemption Regarding Victims of Sex
Trafficking: the Ministers of Industry and the Interior can authorize the victim of sex trafficking
a visa and permission to stay in the shelter pending trial, Entry to Israel Law, supra note 104, at
Art. 1.
106 Entry to Israel Law, supra note 104, at Article 3A(g).
107 E-mail from Nomi Levenkron, Attorney at Hotline for Migrant Workers in Israel (Nov.
20, 2007, 4:50:00 EST) (on file with author) [hereinafter Levenkron E-mail]; See also Rinat
Davidovitch, WOMEN TRAFFICKING SHELTER REPORT, INVISIBLE WOMEN 17 (2006).
790
CARDOZO PUB. LAW, POLICY & ETHICS J.
[Vol. 6:773
ior. 10 8 The Legal Aid Office must provide free legal counsel to trafficking victims involving the Entry into Israel Law or civil proceedings
originating from a trafficking offense.' 0 9 Prosecutors can request victim
compensation in criminal trials of traffickers for up to 170,000 NIS
(about U.S. $40,000).11 ° Plea bargains are often conditioned upon remunerations being paid to the victim."' Although the government is
hesitant to invest in the rehabilitation of victims of sex trafficking because of the social stigmas and chemical dependencies, the Ministry of
Health established clinics in Tel Aviv and Haifa to provide free medical
services related to sexually transmitted diseases and counseling. 11 2 The
victims' "safe return" is coordinated with a local NGO through the International Organization of Migration.'
B.
Human Trafficking
1.
Victims
Since the introduction of non-Palestinian migrant workers in
Israel, the incidence of forced labor, enslavement, and human trafficking
Foreign workers in agriculture, construction, and elder
has increased.'
care have been subjected to debt bondage and other restrictions on their
basic freedoms. 115 Government policies of making employment visas
exclusive to one employer, failing to punish abusive employers, and de116
porting illegal workers have encouraged the trafficking phenomenon.
Additionally, employment agencies abroad "recruit" foreign workers,
promising them two year terms of employment and collecting large fees
for employment placement.' 17 The workers must incur debt to finance
108 Levenkron E-mail, supra note 107.
109 Anti Trafficking Bill, supra note 103, at § 26.
110 Penal Code, supra note 101, at § 77; Investigation and Prosecutions Policy for Prostitu-
tion and People Trafficking Offenses (Hebrew) 2002.
' '' Levenkron E-mail, supra note 107.
112 Women as Commodities, supra note 93, at 76.
113 Levenkron E-mail, supra note 107.
114 Levenkron & Dahan, For You Were Strangers: Modern Slavery and Trafficking in Human
Beings in Israel, HOTLINE FOR MIGRANT WORKERS 7 (2003) [hereinafter For You Were
Strangers].
115 Id. at 11-13 (Such policies commonly implemented, although forbidden by the Penal
Code, include forbidding workers from having contact with or engaging in sexual relations with
local residents, prohibiting workers' participation in political or cultural activities, and confiscating workers' passports.). See also Penal Code, supra note 101, at § 376(i).
116 For You Were Strangers, supra note 114, at 34.
117 Id. at 7-9 (This practice is illegal per sections 12(i) and (ii) of the Law of Employment
Workers by Manpower Contractors, 1996).
2008]
HUMAN TRAFFICKING IN THE US. & ISRAEL
791
the recruitment fees, often forcing them into a debt-bondage position
upon their entry in Israel." 8 Often times, although employment is
promised by the agencies, the workers are not provided with the guaranteed employment on their entry,119 and are therefore faced with the
choice of illegal working arrangements or an immediate return to their
home countries.
2.
New Comprehensive Human Trafficking Law
The Draft Bill Amending the Penal Code-Prohibition of Israeli
Human Trafficking 120 ("Israeli Human Trafficking Law"), unanimously
passed into law on October 17, 2006, broadens the laws against sex
trafficking by amending the Penal Code. The Israeli Human Trafficking
Law recognizes the crimes of trafficking persons and organs, and by providing protection for trafficking victims in accordance with international standards. 12 ' The goals of the law are twofold: (1) to provide the
tools to improve the struggle against trafficking in persons and to protect the victims; and (2) to match the Israeli legislation to the international conventions of which Israel is a signatory, allowing Israel to ratify
those conventions. 12 2 The law achieves these goals by increasing the
punishment for all actors in the transactions involved in trafficking persons. 123 This provides the police and prosecutors with the ability to
confiscate property and punish traffickers with severe sentences.12 4 It
also creates a fund for the protection of the victims 25 and various procedural mechanisms to protect the victims' identities (forbidding the publication of minor victims' names, pictures, and other personal details,
and allowing judges to convene "behind closed doors"). 126 The Israeli
Human Trafficking Law reaches farther than the borders of the State,
118 Id. at 7-9.
119 The agencies have already gained their income from the employment fees, and are therefore not compelled to provide employment to the workers. Women as Commodities, supra note
93, at 8 (citing Oron Meiri, You've Got Your Own Unemployed. What Do You Need Us For?,
YEDIOT AHARONOT, Dec. 7, 2001; Ruth Sinai, Middlemen Will Not Be Permitted to Import
Foreign Workers for Agriculture and Construction, YEDIOT AHARONOT, Jan. 15, 2002); Lobel,
supra note 8.
120 Israeli Human Trafficking Law, supra note 9.
121 Id. at 237.
122 Id. at 236.
123
Id.
124
Id.
125
Id.
Id. at 243.
126
792
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[Vol.
imposing personal liability on all Israelis who engage in trafficking activ127
ities in other countries, even where trafficking is legal.
i.
Restructuringto Bring all Forms of Trafficking Under One Subsection
The Israeli Human Trafficking Law recognizes the trafficking of
persons by structurally removing the sentencing related to prostitution,12 previously located in the "moral protection" subsection and replacing it in the newly created subsection protecting "general
freedoms."' 129 This new subsection comprehensively recognizes the
broader crime of human trafficking and defines it with respect to its
subset crimes of (1) the taking of organs; (2) the birth of a child and the
taking of him afterwards; (3) causing slavery; (4) causing prostitution;
(5) causing the participation in an obscene publication or show; or (6)
executing a sex crime.13 °
ii.
Broad Definition of Trafficking
Trafficking is defined broadly as selling or buying a human being
or engaging in any transaction involving a human being, with or without compensation.1 3 1 Selling or buying includes all forms of compensation including financial compensation, compensation equal to money,
service, favor, or any other form of compensation. 132 The seller, buyer,
selling agent, or purchasing agent of sex traffic or human traffic will be
33
sentenced to a minimum of four and a maximum of sixteen years.1
The severity of trafficking of minors is recognized by the increased term
of imprisonment to a minimum of five and a maximum of twenty
years.' 34 Although the judge may impose less than the minimum sentence, he must write a special decision explaining his decision for imposing the decreased sentenced. 35 The judge does not have the discretion
to give the trafficker parole, unless there are special circumstances that
1 36
he explains in his decision.
127
128
129
130
131
132
133
134
135
136
Id. at
Id. at
Id. at
Id.
Id. at
Id.
Id. at
Id. at
Id. at
Id. at
236.
236-238, 240-242, 244.
240-241.
237-38.
240-41.
238, 241.
241.
242.
2008]
HUMAN TRAFFICKING IN THE US. e&ISRAEL
iii.
793
Abduction as a Form of Trafficking
The Human Trafficking Law also broadens the definition of abduction and subjects Israeli kidnappers in any other country to the penalties of the crime in Israel, thus accounting for kidnapping's
fundamental role in trafficking persons generally. 137 The new elements
of abduction include abduction for the purpose of: (1) homicide, (2)
imprisonment, (3) extortion, (4) trafficking organs, (5) trafficking babies, (6) slavery, (7) prostitution, (8) forced participation in obscene
publication or show, (9) serious injury, or (10) sex crimes. 138 Any abduction undertaken for any of these goals will result in the additional
charge of trafficking and the imposition of an additional sentence.' 3 9
For example, Article 371 previously allowed a twenty year sentence only
for kidnappers who knew that the victim would be imprisoned subsequent to the kidnapping. 14 ' Now, this twenty year imprisonment is
imposed on any kidnapper who puts his victim at risk of any of the
above listed offenses."'4 The person who imprisons the victim is subject
to the same punishment.' 4 2
iv.
Forced Labor Versus Slavery
Prior to the Israeli Human Trafficking Law, the Penal Code de1 43
fined "forced labor" as "forcing a person to work against his will."'
The Israeli Human Trafficking Law replaces the term "forced labor"
with "slavery."' 144 The purpose of this replacement is to achieve compliance with the International Conventions 4 5 and the U.S. Model Law to
Combat Trafficking in Persons, in addition to easing the judges' role in
differentiating between unfair situations and conditions that rise to the
level of trafficking persons. 146 However, the definition is not too specific, providing the judge sufficient freedom to make his determination. 4 7 A victim can satisfy the definition of slavery even if he is paid
137 Id. at 238.
138 Id. at 238-239.
139 Id.
140 Id. at 238.
141 Id.
142 Id.
at 239.
143 Id.
144 Id.
145 Palermo Protocol, supra note 7.
146 Israeli Human Trafficking Law, supra note 9, at 240.
147 Id.
794
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some compensation in return for his labor, as long as he was forced,
pressured, or threatened.1 48
v.
Other Trafficking-Related Offences and Tools to Fight Trafficking
Before the Israeli Human Trafficking Law, employers who held
their employees' passports were punished with only up to one year of
imprisonment.' 4 9 The Israeli Human Trafficking Law recognizes the severity of this crime, and its relationship to facilitating trafficking and
situations of slavery, by increasing the punishment to seven years imprisonment if the confiscation is for the purposes of the abovementioned
list.' 5 0
Israel's law permitting property confiscation' 5 ' is applied specifically to combat trafficking.15 2 The law creates a new fund exclusively
for trafficking to keep confiscated property. 5 3 The goals of the fund are
(1) protection: the care and recuperation of such victims; (2) the prevention of crimes of trafficking: border control, intelligence, and public
awareness campaigns; and (3) prosecution. 154 The Minister of Justice is
responsible for publishing the specific guidelines and regulations for the
fund. 155
15
Article 13 of the Law of Legal Assistance Between Countries
allows the Israeli Court to enforce foreclosure orders from foreign
courts. 57 The Israeli Human Trafficking Law broadens the current implementation of respecting foreign foreclosures for fighting international
phenomena 158 like drug trafficking, money laundering, and international terrorism, by including the crime of trafficking in persons.
IV.
COMPARATIVE ANALYSIS
The United States has both enacted comprehensive domestic
human trafficking legislation and has created an international monitor148
Id.
149 Id.
150 Id.
151 Law Against Criminal Organizations, 5763-2003, 68 LSI 502 (2003) (Isr.).
152 Israeli Human Trafficking Law, supra note 9, at 242.
153 Id.
154 Id.
155 Id.
156
Law of Legal Assistance Between Countries, 5758-1998, 68 LSI 356 (1998) (Isr.).
157 Id.
158 Israeli Human Trafficking Law, supra note 9, at 242.
20081
HUMAN TRAFFICKING IN THE U.S. & ISRAEL
795
ing and sanctioning system to address the problem on a global level. 15 9
Israel has responded by amending its sex trafficking legislation to recognize the broader crime of human trafficking, constructing the new legislation in accordance with the United States standards and model.' 6 °
Ironically, some United States criticism of the Israeli scheme recognizes
flaws in the system that the United States has yet to remedy. For example, the 2006 TIP Report ironically criticizes Israel's lack of free legal
representation for victims of human trafficking, apparently ignoring Israeli Court directives to provide such representation, while the United
States itself fails to provide free victim representation.
Although the Palermo Protocol expressly rejects the relevance of
consent to the crime of trafficking and the Israeli Human Trafficking
Law refuses to recognize consent to slave-like conditions, the TPVA provides an ambiguous definition of trafficking, skirting the role of victim
consent.1 6 1 While the Palermo Protocol defines trafficking to include
"the threat or use of force or other forms of coercion," the Israeli
Human Trafficking Law does not explicitly make trafficking contingent
on coercion, and the TPVA does not even recognize the threat of force
16 2
in its definition of severe forms of trafficking.
In short, the TVPA has only modestly expanded the legal parameters
of the concept of "coercion," while simultaneously codifying an approach to forced labor that-contrary to earlier law-gives central importance to the question of victim consent. With respect to
Thirteenth Amendment-based law, the TVPA appears to be a small
63
step forward and a significant step back.'
159
160
161
See discussion supra Parts I.B-C.
See discussion supra Part III.
See discussion, supra Parts I-II. Victim consent versus coercion is important in distin-
guishing smuggling from trafficking since most realistic scenarios involve some mix of consent
and coercion-e.g. consent to cross the border illegally because of vulnerability and coercive
circumstances, and no knowledge of conditions following the border crossing. Jacqueline
Bhabha, Trafficking, Smuggling, and Human Rights, Migration Info. Source, Mar. 1, 2005, http:/
/www.migrationinformation.org/Feature/display.cfm?id=294. See also Chacon, supra note 1, at
2986.
162 22 U.S.C. § 7102. Victims of'severe forms of trafficking in persons' exclude individuals
who choose to enter the country in violation of immigration laws, even if those individuals are
later subject to actions that constitute 'trafficking' for purposes of the prosecution of their traffickers. See 28 C.F.R. § 1100 (2005) ("It is an open question under the TVPA whether the
consent of the individual to some element of the act of trafficking obviates the conclusion that
the individual is a victim of a 'severe form of trafficking.'"); Chacon, supra note 1, at 29842985.
163
Id. at 3000.
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[
Furthermore, the Palermo Protocol recognizes "abduction, fraud,
deception, the abuse of power or of a position of vulnerability," whereas
the Israeli Human Trafficking law acknowledges abduction and extortion, and the TPVA leaves this broader definition to be settled by case
law. Additionally, the broad "purpose of exploitation" required by the
Palermo Protocol is matched by the knowledge standard required by the
Israeli Human Trafficking Law and the specific "subjection to involuntary servitude, peonage, debt bondage, or slavery" of the TPVA definition. 164 Interestingly, the Israeli Human Trafficking Law similarly
recognizes slavery, as distinguished from forced labor, in its definition of
victims of trafficking, leaving the judge sufficient discretion to identify
trafficking when he sees it. However, according to the Israeli Human
Trafficking Law, victims who receive meager compensation are not pre165
cluded from being considered victims of trafficking.
Although both laws explicitly recognize that trafficked individuals
are victims rather than perpetrators of a crime, neither law sincerely focuses on the victim. The United States has an unreasonably high standard requiring a "severe form" of trafficking in order for victims to be
entitled to social benefits. 166 Similarly, the "T Visa," which provides the
opportunity for permanent residence for victims is limited by the severe
standard and additionally limited to 5000 per year, roughly one-tenth of
the number of trafficking victims that the United States government
estimates enter annually. 167 The Israeli legislation does not explicitly
provide for permanent residence; however, victims are allowed to stay in
Israel pending prosecution of the traffickers and there is a discretionary
standard that allows for the Minister of the Interior to extend a victim's
visa. 168 Both laws provide benefits only to victims who are involved
with the prosecution of their traffickers. Systems that condition residency visas and victim benefits on cooperation with the criminal investigation and prosecution of the traffickers focus solely on victims as
investigative tools rather than individuals deserving of human rights
protections. This perception, espoused by law enforcement and prosecutors, makes the disjunctive role of victims apparent, and must be
69
overcome. 1
164
165
166
167
168
169
22 U.S.C. § 7102(8)(B).
See Israeli Human Trafficking Law, supra note 9, at 240.
22 U.S.C. § 7105. See discussion supra Part I.B.
Wetmore, supra note 1, at 167.
See discussion, supra Part III.B.i.
See Emerton, supra note 1, at 244.
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797
In both countries, victims are entitled to mandatory restitution
from convicted traffickers. 170 However, the value of the restitution in
the United States is the greater of the value of the labor or services to the
trafficker and the fair market value, while the value of the restitution in
Israel is limited to a ceiling of an inevitably lower amount. 17 ' Furthermore, the United States statute specifies a civil cause of action for violations of the relevant section of the United States Code, 17 2 while the
Israeli law provides no such statutory cause of action. Despite both
countries' acknowledgement of the victim's right to restitution, both
1 73
laws fail because of their inability to secure funding for the victims.
Although the new Israeli legislation does provide for a state fund, there
is no indication where the money will come from and how the funding
will be allocated to "combat trafficking." The United States law also
provides for congressional funding for educational purposes, but it is
unclear if any of this money will serve as financial support to the
victims.
The United States law attempts to criminalize all people who
"knowingly" engage in any part of the trafficking transaction-including harboring, transporting, and the holding of immigration documents, but this standard is too high to provide for criminalization of
1 74
"brokers" or other agencies that participate in the trafficking network.
The Israeli law casts a broader net by focusing on the economic beneficiary; however, an article specifically criminalizing manpower agencies
was not adopted in the new law. 175 Furthermore, although Section
1589 of the Israeli Law applies a maximum penalty of twenty years to
anyone who knowingly provides or obtains the forced labor or services
of a person, the general understanding is that this does not include cli-
170
In Israel, the burden is on the Court to justify its ruling in a written opinion denying
victim compensation. Levenkron E-mail, supra note 107.
171 See discussion supra Part III.B.2.
172
See discussion supra note 51.
173
See discussion supra Parts I.B., III.B.2.
Employers are normally shielded from liability because they use contractors and in-
174
termediaries to compel forced labor. See William R. Yeomans, Prepared Statement Concerning
Trafficking in Persons, before the Subcomm. on Near Eastern and South Asian Affairs, Comm. on
Foreign Relations, U.S. Senate, 106th Cong., (Apr. 4, 2000) (explaining that criminal law currently only allows prosecution of the "direct oppressor" and not the "economic beneficiary").
175 Levenkron E-mail, supra note 107.
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ents of sex trafficking victims. 176 Interestingly, neither country has prosecuted clients of sex trafficking victims, although their demand arguably
77
fuels the trafficking industry. 1
V.
IMPROVEMENTS TO BOTH THE ISRAELI AND UNITED STATES
TRAFFICKING LAWS REGARDING VICTIM ASSISTANCE
Both countries could improve the services they provide to victims
pending trial or repatriation. Some improvements might include minimal procedures prior to deportation including mental health evaluations
or counseling sessions and testing and treatment for sexually transmitted
diseases. Although nonprofit organizations in both countries have attempted to pay for such services where the government has failed to
provide funding, 178 government funded healthcare would demonstrate a
real commitment to victims' recuperation and would decrease the
chance that victims would be re-victimized upon their return.
Another way to empower victims is to financially compensate
them. Financial compensation is arguably more useful than the expensive and long term process of rehabilitation-victims return to the home
country less vulnerable, in the position to start a small business or to get
back on their feet. 179 Although both Israel and the United States have
noted the importance of financial compensation in recognizing that the
victims have been wronged and allowing the victims to rebuild their
lives by providing mandatory compensation following a criminal conviction, many victims never see this money because the trafficker fails to
pay.' 8 ° In such a situation, the government should compensate the victims directly. Funding might be provided from a crime-victim compensation fund. 18 ' Another source of funding may include seized property
176
Soccer Star and Senior Media Man Party at "Escort Center" in Tel Aviv, Maariv, July 22,
2006 (Hebrew) (recounting that after immigration police discovered potential victims of trafficking at the escort center, the victims were quickly deported).
177 See Anderson & Davidson, supra note 16, at 41-43.
178 In the United States, victims are provided with no health care until they have been bureaucratically approved for such entitlement. Julianne Duncan, Barriers to Service for Trafficking
Victims in the United States, Remarks preparedfrr Senior Policy Operating Group on Trafficking in
Persons, http://www.usccb.org/mrs/SPOGTiPO20906Duncan.pdf (last visited November 25,
2007).
179 See Hyland, supra note 1, at 50-51.
180 Levenkron E-mail, supra note 107.
181 In the United States, the Office of Victim Compensation minimally compensates "innocent victims" of crimes who report the crime within one week or are justified in reporting later,
Help for Victims of Trafficking in Persons, http://www.ojp.usdoj.gov/ovc/help/tip.htm. The com-
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HUMAN TRAFFICKNG IN THE US. & ISRAEL
connected to the traffickers,
traffickers.
182
799
or fines and taxes paid by the
183
Compensation can also come in the form of damages from civil
litigation. Civil litigation assists the victim rehabilitation process by
providing additional finances, and empowering the victim, by recognizing that he has been wronged. 1 84 However, civil litigation is often not
an option to victims who do not have immigration status and must
return to their country of origin following the criminal prosecution of
the traffikers. Even if the victims are granted status, without a working
permit they often cannot fund the attorney fees associated with the civil
litigation. Therefore, both countries should provide temporary resident
visas and free legal support to all victims who desire to pursue civil
remedies.
Finally, the trafficking laws of both countries should expressly
criminalize manpower agencies that exploit the financially dependent
position of migrant workers. 185 In the United States, the knowledge
standard should be lowered for crimes involving intermediaries, imposing liability on all members of the transaction and prohibiting them
from hiding behind middlemen. Additionally, false employment agencies that claim to offer jobs but instead force women into prostitution
pensation is funded through the federal government and administered locally. Although victims
of trafficking are officially entitled to such funds, the issue of their "innocence" might preclude
the reward. Additionally, the sums provided are meager. In Israel, a similar government-funded
victim compensation fund exists for victims of terror. The government of Israel, via National
Insurance, provides assistance to terror victims under the Law of Compensation to Victims of
Terror and Hostile Acts (1970). Arguably, both of these funds could provide supplemental
compensation for trafficking victims.
182 An important addition to the criminalization of trafficking, given the extent of organized
crime involvement in trafficking, is the power to confiscate and recover the proceeds of organized crimes, including trafficking of persons (although, interestingly, the Palermo Protocol lacks
a confiscation of assets provision). In the United States and Israel confiscated assets are indirectly available to promote awareness of trafficking, 18 U.S.C. § 2253. These assets should be
directly available to NGOs to support anti-trafficking programs and services to victims of trafficking and to the victims themselves, in the case that they are practically denied compensation.
This would go beyond the recommendation of the Convention on Transnational Organized
Crime, which only requires states to dispose of such assets "in accordance with its domestic law
and administrative procedures." (at article 14). See also Emerton, supra note 1, at 244-245.
183 Although taxes and fines serve a penalizing rather than a rehabilitative function, it is likely
that these sums could still be used to fund victims if no other funding is available.
184 Hyland, supra note 1, at 51 ("The victim-centered civil proceeding is a source of empowerment and vindication for the victim.").
185 Other punishment for willful exploitation should include the imposition of attorney fees
and punitive damages.
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should face severe punishments.' 8 6 In Israel, an additional article should
de-incentivize the manpower agency "scheme" of charging fees to migrant laborers in exchange for employment contracts, but failing to provide employment, leaving the laborers in debt and out of status on their
entry to Israel. 18 7 This scheme makes laborers especially vulnerable to
debt bondage, while the manpower agencies benefit financially. The
trafficking law and its practical application in both countries similarly
shield the consumer of sex from trafficking prosecution because of the
knowledge threshold. Clients should be educated about trafficking and
encouraged for reporting potential trafficking offenses.
CONCLUSION
Human trafficking is on the rise in both the United States and
Israel. Both countries have made legislative efforts to address the phenomenon, providing tools for prevention, prosecution and increased
punishment of traffickers, and protection and rehabilitation of victims.
The United States fails in its limited protection efforts, providing resources and support exclusively to victims of severe forms of trafficking.
The Israeli Human Trafficking Law provides a broader protection
scheme, offering temporary residence to trafficking victims regardless of
their consent. However, both countries limit the efficacy of their antitrafficking policy by ignoring the push and pull factors of trafficking.
This ignorance is manifested in the failure to prosecute manpower agencies that entice foreign workers into slavery-like situations and clients
who take advantage of trafficking victims' vulnerability and provide the
demand that fuels the phenomenon. Furthermore, although both countries acknowledge the push factors, (the TVPA even goes so far as to
provide grants to foreign countries for vulnerable populations), neither
law provides sufficient mechanisms to financially empower victims.
Both Israel and the United States should use the property confiscated
from traffickers to directly compensate victims. Such a fund would be
successful in empowering victims and ensuring that they will not be
trafficked again in the future.
186
See O'Neill, supra note 25, at 5 (describing the unregulated and unscrupulous employ-
ment agencies that offer seemingly legitimate jobs, but then force women into prostitution).
187 See discussion supra Part III.B.2, Part V.