Human traffic, human rights: redefining victim protection
Trafficking in persons comprises a range of human rights violations, which sees crimes committed by traffickers compounded by the inadequate and inappropriate response of governments worldwide. Trafficked persons who escape their situation often find themselves victimised again as a result of the treatment they receive at the hands of the authorities.
Increasingly, governments have responded to trafficking through restrictive immigration policies. These not only render migrants more vulnerable to traffickers, but often lead to trafficked persons being swiftly returned to their home countries as undocumented migrants, returned to the very same conditions from which they left, rather than being identified as victims of crime. This fails to give trafficked persons opportunities for recovery and redress, and further deprives them of access to justice, through the possibility of criminal or civil action against traffickers.
Measures for protection and assistance to trafficked persons are included in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention Against Transnational Organized Crime (2000). However, unlike the criminal provisions in this Protocol, which are obligatory on State Parties, the human rights protections are discretionary under the Protocol.
How to ensure that governments place victim protection at the core of their anti-trafficking policies was the objective of Anti-Slavery International’s two- year research study investigating various measures to protect victims, especially those who act as witnesses in the prosecutions of traffickers. We carried out research in collaboration with local non-governmental organisations in ten countries: Belgium, Colombia, Italy, Netherlands, Nigeria, Poland, Thailand, Ukraine, United Kingdom and United States. Of particular interest to Anti-Slavery International was the effectiveness of providing residency permits to trafficked persons to enable them to access their basic human rights, recover from their situation and secure prosecutions of traffickers. Our research found that the countries which fared better in prosecuting traffickers for various crimes (Belgium, Italy, Netherlands and United States) were the four countries which also had the most comprehensive measures for assisting victims, including temporary residency permits for those prepared to testify against their traffickers.
An important part of this protection has been to ensure that all persons who are suspected of being trafficked have at least a ‘reflection delay’ of three months, as in the Netherlands. The reflection delay allows trafficked persons to remain in the country legally whilst they recover from their situation and consider their options. Three months is a reasonable time period during which a person can make fully informed decisions about what they want to do next, and if they want to pursue civil or criminal action against their trafficker. The reflection delay must be accompanied by access to specialised services of a non-governmental organisation that can ensure appropriate housing, legal, medical, psychological and material assistance are provided. There is a need for documents authorising temporary residency to be issued immediately (within 24 hours) such as in Belgium to ensure trafficked persons have access to these services straight away; in countries such as Italy and the United States the slow processing of residency permits means that many trafficked persons are dependent upon the good will of individuals and organisations to take care of them. All States need to fund shelters for trafficked persons, and fund and provide victim and witness protection.
Currently, countries such as Belgium, Netherlands, Poland, Thailand, United Kingdom and United States only allow those victims who are willing to assist with investigations and prosecutions the right to temporary stay. This can breach international human rights principles, such as not to expel someone if there are substantial grounds for believing they may be in danger of torture.2 We found a better approach was to ensure that temporary residency status should be available to all trafficked persons who have suffered serious abuse in countries of destination, or would suffer harm if they were to return home, or who are assisting in investigations or prosecutions of traffickers. Keeping the issues separate also ensures that receiving residency status will not be used to discredit a victim’s testimony at a trafficker’s trial, especially in common law legal systems.
For those trafficked persons who seek access to justice and are willing to testify against their traffickers, extensive witness protection measures are required. This means both ensuring police provide protection from reprisals, and that victims are given access to a range of measures and different levels of protection, both formal and informal. In terms of giving evidence at trial, countries need to ensure victim witnesses are able to give evidence safely, and make efforts to reduce the secondary trauma that victims often face in a courtroom, such as through the use of sworn statements, recorded testimonies, video-links and pre-trial hearings closed to the public. Witness protection measures must balance the rights of the defendant to a fair trial, with the rights of victims not to be traumatised or put in danger again through the experience of testifying. Informal measures such as separate areas in courtrooms for victim witnesses to prevent possible confrontation by friends or family of the trafficker are equally important.
In civil law countries, it is important that the victim has their own lawyer or legal advocate to represent them in the criminal case. Anti-Slavery International found that cases where victim’s rights were protected, and there was a successful conviction, were predominantly cases where the trafficked person had legal representation. Lawyers play an important role in all countries in ensuring rights of trafficked persons are protected, particularly their right to information about court proceedings and ensuring a trafficked person is recognised as a victim of crime. This is especially important to ensure victims have access to legal redress and compensation. Compensation for lost earnings, as well as for damage suffered, was an important way of both vindicating victims, making the process of going through the criminal trial worth it, as well as addressing their financial needs.
Anti-Slavery International’s research has found there is a growing awareness at all levels of the need for a human rights framework to combat trafficking most effectively. Cases of ‘best practice’ in terms of successfully protecting victim’s rights, exist where there has been a genuine understanding and goodwill on the part of authorities involved. In these successful cases, there have been committed teams of law enforcement officials, prosecutors, lawyers and service providers, who all displayed sensitivity to the needs and rights of trafficked persons in each case. Our research highlights the need to institutionalise the good practices we have seen. The report makes 45 recommendations regarding ten specific thematic areas: general; investigation and prosecution of traffickers; contradiction between laws concerning undocumented migrants and those affecting trafficked persons; residency status for trafficked persons; protection from reprisals; in-court evidentiary protection; recovery and assistance measures; role of lawyers; legal redress and compensation; and return and repatriation.
Unfortunately, the current models of protection offered to trafficked persons too often prioritise the needs of law enforcement over the rights of trafficked persons. Often ‘protection’ still means repression of victims’ rights. We call for victim protection to be redefined and reworked so that it means supporting and empowering those who have been trafficked. Protection of victims per se, is not the same as protection of victims’ human rights. The challenge for governments is to live up to their obligations under international law and make protection of all human rights a reality for trafficked persons who escape their situation.
To read the full report, please click here.