Human rights-based perspective is urged in prosecuting crimes of trafficking in persons
“Human rights of trafficked persons are often not the primary consideration in the pursuit of effective criminal justice responses to trafficking,” Joy Ngozi Ezeilo, the Special Rapporteur on trafficking in persons, especially women and children said, presenting her report to the Human Rights Council.
She urged States to prosecute trafficking and related acts using a human rights-based perspective. In order to effectively combat and prevent trafficking in persons, it is essential to criminalize the conduct of trafficking and related acts through “clear, enforceable and comprehensive” legislation, while ensuring effective protection of the victim.
She noted that efforts to identify trafficked persons as victims who deserve protection are often complicated by the fact that victims may be “imperfect”; they may have committed crimes or have criminal records.
Joy Ngozi Ezeilo urged that they should not be prosecuted for offences relating to their status as victims of trafficking victims, for it destroys trust and re-traumatizes the victims.
Victims who have criminal records may also face difficulties in recovery and reintegration.
Timely and efficient identification of victims is central to the criminalization of trafficking, as it strengthens the ability of law enforcement officials to prosecute traffickers effectively and is fundamental in terms of being able to provide victims with the necessary support.
She further acknowledged the work of victim support agencies working on the ground as they are the first to come into contact with trafficked persons and thereby serve a key function.
The Special Rapporteur stated that support services to trafficked persons must be designed and delivered in a manner that is compatible with a human rights-based approach. An approach that requires an analysis of the ways in which human rights violations arose throughout the trafficking cycle as well as States’ obligations under international human rights law.
The approach further seeks to both identify and redress the discriminatory practices and unjust distributions of power that underlie trafficking, maintain impunity for traffickers and deny justice to victims of trafficking. A human rights-based approach also identifies victims as rights holders and their entitlements.
Some States have linked the provision of assistance and protection to cooperation with national criminal justice agencies, the Special Rapporteur strongly believes that “support and protection should not be made conditional on the victim’s capacity or willingness to cooperate in legal proceedings”.
She is also concerned by practices where victims are mandatorily detained in shelters. In particular, she considers the routine detention of women and children in shelter facilities “discriminatory and unlawful”.
The Special Rapporteur offered a number of recommendations, including criminalization of trafficking and related acts in accordance with international law and standards; non-criminalization of trafficked persons for status-related offences; building the capacity of front-line officials to identify trafficking victims accurately; and encouraging greater coordinated collaboration between criminal justice and victim support agencies.
Finally, warning that “certain laws and policies may have unintended negative consequences for victims of trafficking”, the Special Rapporteur recommended that States should “include appropriate safeguards in the criminal justice responses that protect victims, witnesses and suspects, and integrate gender and age-based perspectives into investigations and prosecution”.
26 July 2012