ICAT and the Special Rapporteur on Trafficking in Persons, especially Women and Children convene an expert roundtable on the non-punishment of victims of trafficking

The Inter-Agency Coordination Group against Trafficking in Persons (ICAT) is a strong advocate of the non-punishment of victims of trafficking for crimes that they are forced by their traffickers to commit.

This was the message conveyed by John Brandolino, Director, Division for Treaty Affairs at the United Nations Office on Drugs and Crime (UNODC), co-Chair of ICAT in 2021, during an expert roundtable on non-punishment of victims of trafficking in persons co-organized by ICAT, the Special Rapporteur on Trafficking in Persons, especially Women and Children, and the Permanent Missions of Argentina, Germany and the Philippines to the United Nations in Geneva, on 30 June 2021.

The roundtable on the non-punishment principle was held in the margins of the 47th Session of the Human Rights Council, where the Special Rapporteur, Professor Siobhan Mullally, presented her latest report, offering an overview of the recognition of the principle in various legal instruments and jurisprudence and recommendations for its implementation. The “punishment of a victim marks a rupture with the commitments made by States to recognize the priority of victims’ rights to assistance, protection and effective remedies” says Professor Mullally in her report.

Referring to the first-ever ICAT Plan of Action adopted in December 2020, John Brandolino stressed that “ICAT has committed to continue promoting the effective implementation of the non-punishment principle, as a pillar of a human rights- and victim-centered approach to countering [trafficking in persons].”

Punishment of victims of trafficking, confirmed Ambassador Federico Villegas, Permanent Mission of the Argentine Republic to the UN in Geneva, should be considered a human right violation.

While States increasingly demonstrate great interest in applying the principle, its implementation in practice has been uneven, particularly in the context of criminal proceedings, due to practical challenges, such as establishing that the crime committed by the victim occurred as a direct consequence of their exploitation. Gathering relevant evidence in that regard can be particularly challenging.

The event therefore aimed to create a platform for experts to exchange on challenges related to the implementation of the principle, including scope of application, as well as forms of punishment experienced by victims as a direct consequence of their trafficking.

Speaking of the first milestone judgement by the European Court of Human Rights in favour of the non-punishment principle, Parosha Chandran, Barrister and Professor of Practice in Modern Slavery Law in The Dickson Poon School of Law, King's College London emphasized the need for training of prosecutors on defending human rights breaches linked to non-punishment.

“Whether it’s a vulnerable adult or a child, if the person comes to the point where they are being prosecuted, there should be proper assessment by prosecutors to consider whether or not this person satisfies the identification [as a victim of trafficking in persons] and should be removed from the criminal justice system […] for a decision to be taken on whether or not they satisfy the test of non-punishment” says Chandran.

Marika McAdam, independent international legal consultant and adviser on trafficking in persons, who has investigated forms of punishment experienced by victims outside of legal proceedings, presented findings from her recent study on Freedom of movement for persons identified as victims of human trafficking in the Asian region.

She highlighted that conditions in state and non-state closed shelters may constitute a form of punishment for victims. While shelters are needed to grant victims protection from traffickers, these should not be punitive environments and should not be an obligation for victims but an entitlement available on the basis of their individual situation, needs, preferences, safety and family situation.

Emphasizing relevant obligations of States under the Convention on the Rights of the Child and the Optional Protocol on the Convention on the Sale of Children, Child Prostitution and Child Pornography, Benyam Dawit Mezmur, Member of the UN Committee on the Rights of the Child, and Professor of Law, Dullah Omar Institute, University of the Western Cape stressed that the non-punishment principle should be applied so that the best interest of the child becomes a central element, including in the framework of a systematic approach to prevention of trafficking.

“Non-punishment should be a conscious effort to move away from juridical proceedings that are not necessarily in the interest of the child”, said Mezmur.

Based on his experience as a practitioner in Argentina, Marcelo Colombo, Head Prosecutor, Specialized Office for Investigation of Kidnapping and Trafficking in Persons’ cases (PROTEX), emphasised that for a better application of the non-punishment principle, assessing conditions under which the victim of trafficking participated in the illegal acts is essential.

He further stressed that the principle of non-punishment gives judges and prosecutors an opportunity to conduct investigations within a human rights-based and gender-sensitive approach, highlighting also the need for training judges and prosecutors in different areas beyond the juridical dimension, so to avoid that other forms of punishment, such as deprivation of nationality, are imposed on victims.

Michelle Koinange, Coalition Coordinator of the NGO Stop The Traffik, elaborated on the situation of trafficking victims held in migration facilities in East Africa, where dire conditions due to overcrowding lead to a high number of victims being arrested and treated like offenders. She also noted gender considerations related to the application of non-punishment principle for male victims, who are often perceived as less vulnerable, and more often are punished for crimes committed as a result of their exploitation.

Finally, Maya Foa, Co-Executive Director of Reprieve offered insights about punitive measures, including citizenship deprivation and refusals to provide assistance, for victims of trafficking recruited by terrorist groups and held in detention camps in the MENA region, and emphasized the need to apply the non-punishment principle for crimes committed in connection with such forced recruitment.

Ultimately, through the different expert interventions and testimonies, the roundtable reinforced the idea that at the basis of the non-punishment principle lies the notion that all anti-trafficking responses should never cause any form of further harm to victims, who have already gone through the traumatic experience of being abused and exploited by their traffickers.

ICAT has so far made collective efforts to promote and support States in the implementation of the non-punishment principle, including through the development of joint guidance for relevant stakeholders, advocacy initiatives, as well as facilitation of expert exchanges.

In 2020, ICAT has in fact published an Issue Brief on Non-Punishment of Victims of Trafficking, providing a “one-UN” voice on the matter.

If you wish to receive the recordings of the event, email the ICAT Secretariat at icat@un.org.

About ICAT:

ICAT was established in 2007, pursuant to UN General Assembly resolution 61/180, as a policy forum to enhance cooperation and coordination among UN agencies and other relevant international organizations to facilitate a holistic and comprehensive approach to the scourge of trafficking in persons. Its members include 29 UN entities and other international and regional organizations.

UNODC and the UN High Commissioner for Refugees (UNHCR) are the current co-Chairs of ICAT for 2021.

ICAT has published extensively on trafficking in persons. Its wealth of information can be accessed on the website here.

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