The effects and affects of international criminality : why make human trafficking an international crime?

Abstract

Activists and some states lobby for the recognition of conduct as internationally criminal. They are optimistic, it appears, that such recognition might bring about justice and morality. My close reading of efforts to mobilize international criminality’s promises for human trafficking shows that international criminalization has come to stand for transcending the legal obstacles that limit international responses to crimes considered “only” ordinary or transnational crimes. Specifically, international criminality has become a placeholder for a set of legal effects seemingly unavailable to other acts: individual criminal responsibility under international law, special rules on states’ and international criminal bodies’ jurisdictions, and exceptions to the immunity of state officials from foreign criminal jurisdiction. My doctrinal study challenges the belief that international criminalization could secure these effects. I demonstrate that international criminality is, at most, a prerequisite for the intended legal rights and obligations; they can, and often already do, attach to human trafficking through suppression treaties and international human rights law. To reflect on activists’ and some states’ attachments to the vernacular of international criminality despite its lack of legal effects, my thesis draws on Sara Ahmed’s and Lauren Berlant’s theories of the role of affect in political discourse. I claim that the value of international criminalization lies in the affective dimension. The circulation of international criminality as a sign of horror constitutes and authorizes an affective subject – a horrified humanity – that ordinary and transnational crimes lack the power to invoke. I argue, however, that hope in this humanity is underpinned by ‘cruel optimism’. Both affectively and legally, international criminalization ascribes horror to individuals, deflecting attention from the complicity of the horrified.