Effective remedy for and protection of victims of trafficking

Although the UN Trafficking Protocol is not by design a human rights instrument and does not focus on victims’ rights, the Protocol contains a specific second section on the ‘assistance to and protection of victims of trafficking in persons’.

A basis for the following Articles is given by Article 24 of the Palermo Convention that obliges its member states to employ effective domestic measures to protect victims from intimidation and retaliation, in particular if testifying as witnesses.3® Article 6 of the UN Trafficking Protocol additionally addresses the necessity to implement effective protection of the identity and personal privacy of victims from the long arm of transnationally operating criminal groups. In paragraph 2, special emphasis is laid on providing the information required for court proceedings, such as (for instance, and herewith mirroring traditional human rights law) by providing translators for trial proceedings. Paragraph 3 upholds the importance of various aspects of recovery and the basic needs of trafficked persons: ‘each State Party shall consider implementing measures to provide for the physical, psychological, and social recovery of victims of trafficking in person’, and provides a list of examples of appropriate housing, counselling, medical, psychological, and material assistance, or employment, educational, and training opportunities.[1]

During the drafting sessions, how to handle victims that had been rescued from traffickers was debated. Representatives feared turning the UN Protocol into a migration convention if measures were adopted to facilitate their remaining in the destination country. On the other hand, return to their country of origin would put them in potential danger of being returned to the traffickers.[2] [3] [4] [5] With the obligation to provide adequate housing, in conjunction with the requirement of Article 14 to respect international obligations under human rights law, international humanitarian law, the 1951 Refugee Convention, and first and foremost the fundamental principle of nonrefoulement, the potentially devastating effects of returning victims to their country of origin is considered and inscribed in the UN Protocol. Furthermore, with reference to adequate housing, the practice of keeping victims in detention centres, often employed in reality, is in focus and here again appears the goal of the Protocol to not punish victims of the trafficking for aspects of the crime itself, such as for instance illegal entry to a state’s territory without valid permits^1 Article 7 reaffirms the potential harm that might follow return of trafficked persons that illegally entered or worked in a foreign country, by recommending a state to ‘consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases/12 The reference to paragraph 2, ‘each State party shall give appropriate consideration to humanitarian and compassionate factors’, is evaluated as primarily showing political commitment^

The actual return of trafficked persons is further regulated by Article 8. Finding its basis in protection of victims having the nationality of a particular state or a permanent residence permit, the obligation is in practice rendered quite ineffective. Trafficked persons often are not protected by their state of nationality as valid documentation is missing and the countries of origin repeatedly hinder return to their territory.

The obligation of paragraph 5 specifically addresses domestic legislation and domestic practices and enshrines the duty to transpose or implement domestic laws to guarantee the fundamental physical safety of victims. The prosecutorial nature of the Protocol is mirrored, requesting states to criminalize and penalize trafficking in human beings: ‘each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, if committed intentionally’. Through the relationship between the Palermo Convention and its Supplementary Protocol discussed earlier, Article

10 of the Convention becomes equally applicable, entailing the liability of legal entities. This should be read in conjunction with Article 8 of the Convention concerning corruption of public officials, which supplements the provisions of the Protocol and mirrors the complementary and sometimes even overlapping scope of application of both the Convention and its Protocol. The United Nations Office on Drugs and Crime (UNODC) indicates that around 134 countries have currently incorporated in their legislation specific trafficking offences that are in line with the UN Trafficking Protocol’s provision. However, the actual conviction rate stays low. Of the 132 countries the Global Report 2012 cites, 21 did not have one conviction in the years between 2007 and 2010 with Africa and the Middle East as regions where the fewest convictions were observed.[6] [7] [8]

Finally, in paragraph 6 compensation for damages is enshrined as ‘the possibility [of] obtaining compensation for damages suffered’. As the Annotation guide discusses, the UN Protocol establishes just the possibility, not the right, to seek compensation and it thus has little priority^5

  • [1] See Art. 6 para. 3(a)-(d) UN Trafficking Protocol.
  • [2] UN Doc./A.AC.254/4/Add.1/Rev.6, (2000), p. 7.
  • [3] Christopher Ram, ‘The United Nations Convention Against Transnational Organized Crime and itsProtocols’, (2001) 1 Forum on Crime and Society (2), 135, p. 143.
  • [4] Art. 7, para. 2.
  • [5] Heintze and Peterke, ‘Inhalt und Bedeutung’, cited in note 19 above, p. 14.
  • [6] UNODC, Global Report on Trafficking 2012, cited in note 21 above, p. 85.
  • [7] UNODC (ed.), ‘An introduction to human trafficking: vulnerability, impact and action’, BackgroundPaper 2008, p. 12.
  • [8] Art. 9 para. 1 (a)-(b). 47 Art. 9 para. 2. 48 Art. 9 para. 5.
 
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