The first decade of the mandate; Basic Principles on the right to an effective remedy for victims of trafficking

The present report makes reference to the activities of the Special Rapporteur on trafficking in persons, especially women and children, from 1 August 2013 to 31 July 2014. Its thematic section provides an assessment of the first decade of the mandate of the Special Rapporteur on trafficking in persons, especially women and children.

Besides the activities carried out from 1 August 2013 to 28 February 2014, already presented in her report to the Human Rights Council (A/HRC/26/37), the Special Rapporteur carried out the following activities from 1 March to 31 July 2014.

On 4 and 7 April, the Special Rapporteur took part in an international ecumenical consultation on the theme of “Migration and human trafficking: modern slavery” in Colombo, organized by the Commission of the Churches on International Affairs of the World Council of Churches and the Christian Conference of Asia.

On 28 and 30 April she participated in the fourth workshop of the Association of Southeast Asian Nations (ASEAN) on the theme of “Criminal justice responses to trafficking in persons: support to victims of trafficking in criminal justice systems”, which was held in Kuala Lampur and organized by the Australia-Asia Program to Combat Trafficking in Persons.

On 21 and 22 May, the Special Rapporteur convened the second consultative meeting on strengthening partnerships with national rapporteurs on trafficking in persons and equivalent mechanisms in Bangkok.¹

1. Additional details on this meeting are available from www.ohchr.org/EN/Issues/Trafficking/Pages/2ndConsultativeMeeting2014.aspx. ↩

On 13 June, the Special Rapporteur presented her thematic report and reports of her visits to Morocco, Italy, Seychelles, Bahamas and Belize during the interactive dialogue at the twenty-sixth session of the Human Rights Council. On the same day, she convened a side event on the main highlights of the first decade of the mandate, which was attended by Member States, civil society organizations and United Nations bodies. On 12 June, she delivered a keynote address at a side event, jointly organized by Austria and the Republic of Moldova, on the role of national, regional and international mechanisms to fight trafficking in persons.

On 15 July, the Special Rapporteur delivered a keynote address at a high-level event in New York on the theme of dignity for victims of human trafficking, organized by the Group of Friends United against Human Trafficking and the United Nations Office on Drugs and Crime to mark the observation of the first World Day against Trafficking in Persons on 30 July.

In follow-up to her thematic report, presented during the twenty-sixth session of the Human Rights Council (A/HRC/26/37), the Special Rapporteur wishes to draw the attention of the General Assembly to her assessment of the first 10 years of the mandate and present additional feedback from Member States and other stakeholders received after her interactive dialogue with the Human Rights Council.

Definition and scope of trafficking in persons

Trafficking in persons was defined internationally for the first time in article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol), as consisting of three elements: (a) an “action”, being recruitment, transportation, transfer, harbouring or receipt of persons; (b) a “means” by which that action is achieved, for example threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability and the giving or receiving of payments or benefits to achieve the consent of a person having control over another person; and (c) a “purpose” of the intended action or means, namely exploitation. All three elements must be present to constitute trafficking in persons in international law. The only exception is that when the victim is a child, the “means” element is not part of the definition.

That definition affirmed that trafficking is much wider in scope than previously envisaged; that it can take place for a wide range of end purposes, including, but not limited to, sexual exploitation; that it can involve men and boys, as well as women and girls, as victims; and that it can take place across borders or within a country, including the victim’s own. The scope of the mandate of the Special Rapporteur also includes trafficking in children for sexual purposes, child labour, adoption and participation in armed conflict; trafficking in men for forced labour, organized crime and other exploitation; trafficking in women and girls for forced marriage, sexual exploitation and forced labour; and trafficking in persons for the removal of organs (A/HRC/10/16, para. 16 and Corr. 1). A number of partners of the mandate have highlighted the substantive contribution that has been made to expanding the discourse in relation to the identification and exploration of different forms and manifestations of exploitation related to trafficking.

The mandate of the Special Rapporteur was established by the Commission on Human Rights in 2004 (resolution 2004/10) to focus on the human rights aspects of the victims of trafficking in persons, especially women and children. Since then the mandate has been renewed three times by the Human Rights Council, in 2008 (resolution 8/12), 2011 (resolution 17/1) and at the twenty-sixth session of the Council in June 2014. In those resolutions, the Council required the Special Rapporteur to (a) seek and receive information from States, human rights bodies and other relevant sources and respond effectively to such information; (b) submit reports, together with recommendations on practical solutions with regard to the implementation of the relevant rights; (c) examine the human rights impact of anti-trafficking measures with a view to proposing adequate responses; and (d) work closely with other mechanisms of the Human Rights Council, the United Nations, regional organizations and victims and their representatives. The establishment of the position of Special Rapporteur, with an explicit mandate to address the human rights aspects of trafficking, affirmed on behalf of the international community two key principles: first, that the human rights of trafficked persons should be at the centre of all efforts to combat trafficking; and second, that anti-trafficking measures should not adversely affect the human rights and dignity of all persons concerned. From 2004 to 2007, the mandate was held by Sigma Huda, from 2008 to 31 July 2014 by Joy Ezeilo and the third Special Rapporteur, Maria Grazia Giammarinaro, appointed by the Human Rights Council in June 2014, assumed her functions on 1 August.

Since the inception of the mandate, the mandate holders have adopted a human rights-based and victim-centred approach in addressing all forms of trafficking and its victims, as well as focusing on causes and vulnerability factors, such as poverty, inequality and discrimination. The fulcrum of the work of the mandate holders has relied specifically on 11 pillars: the “five Ps” (protection, prosecution and prevention, punishment of perpetrators and promotion of international cooperation); the three “Rs” (redress, rehabilitation and reintegration); and the three “Cs” (capacity, coordination and cooperation). The working methods of the mandate are set out below.

The participatory and collaborative methodology adopted by the mandate holders has enabled them to benefit from engagement with a wide range of stakeholders, including international, regional and subregional bodies working on trafficking issues; the private sector; and persons and institutions with particular expertise, such as the medical and transplant communities. Greater visibility of the mandate, through cooperation and partnership with States and stakeholders, was further identified by a number of States and stakeholders as an element which enables the mandate holder to fulfil the role of the moral voice for trafficking in persons in an independent manner. Interaction with victims of trafficking has also been critical, drawing from real experiences and ensuring that the measures taken to address trafficking benefit those in need; that unintended harmful consequences are anticipated and avoided; and that opportunities for change and improvement are identified in a timely way.

Thematic studies have also been a major focus of the work of the mandate holders. Topics for study have been chosen on the basis of their relative importance and urgency, as well as the capacity of the Special Rapporteur to make a contribution to shaping international standards, developing practical solutions and promoting awareness in the chosen area. Issues covered in this way have included measures to discourage demand (E/CN.4/2006/62 and A/HRC/23/48); trafficking for forced marriage (A/HRC/4/23); victim identification, protection and assistance (A/64/290); regional and subregional cooperation in promoting a human rights-based approach to trafficking (A/HRC/14/32); prevention of trafficking (A/65/288); the right to an effective remedy for trafficked persons (A/HRC/17/35); the administration of criminal justice in the cases of trafficked persons (A/HRC/20/18); trafficking in supply chains (A/67/261); and trafficking in persons for the removal of organs (A/68/256).

At the national level, the thematic reports of the Special Rapporteur have been used by some States (including some that have not so far been visited by the Special Rapporteur) and civil society organizations to elaborate or strengthen institutions and policies; as reference documents for further research; and to raise awareness of the topic covered.² Some stakeholders have noted that the thematic issues covered in the annual reports of the Special Rapporteur have been reinforced by a number of resolutions on combating trafficking adopted by the Human Rights Council and the General Assembly, which have contributed to wider sensitization and implementation. Moreover, the Special Rapporteur also welcomes with appreciation the decision of the General Assembly in resolution 68/192 to designate 30 July as the World Day against Trafficking in Persons, in the context of the need for raising awareness of the situation of victims of human trafficking and for the promotion and protection of their rights. She also recognizes the two new international legal instruments on forced labour that the International Labour Organization adopted in June 2014: the Protocol of 2014 to Convention No. 29 (1930) concerning Forced or Compulsory Labour and Recommendation No. 203 (2014) on supplementary measures for the effective suppression of forced labour. Many of their key provisions, including those addressing remedies, the protection of victims from punishment for crimes they were compelled to commit and protection from abusive recruitment practices, echo the themes and substantive areas of focus of the work of the Special Rapporteur.

2. For example, during the interactive dialogue with the Special Rapporteur at the twenty-sixth session of the Human Rights Council, representatives of Armenia, Belgium, Burkina Faso, Brazil, Ecuador, Ethiopia, Maldives, Malaysia, Myanmar, Israel, India, Indonesia, Iran (Islamic Republic of), Sierra Leone, Spain, Mongolia, Sri Lanka and Viet Nam stated that all or some of their anti-trafficking institutions, policies and laws had been reinforced in conformity with the international definition of trafficking. ↩

Regional and subregional bodies addressing the issue of trafficking in persons also considered the mandate holder as a strategic partner and complemented the initiatives taken, with a view to promoting and harmonizing anti-trafficking approaches. For example, the co-chairs of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crimes, have played an important role in supporting the right to an effective remedy for trafficked persons within the framework of the process. That has included the development of a policy guide on trafficking in persons, aimed at assisting countries to implement international obligations.

Country visits have further helped to ground the mandate holders’ understanding of the problem of trafficking in national realities and to forge relationships with those on the front line, while also providing the States concerned and their partners with an opportunity to access information, expertise and insight. Between 2004 and 2014 country visits were undertaken to Bosnia-Herzegovina and Lebanon in 2005 (E/CN.4/2006/62/Add.2 and Add.3); to Bahrain, Oman and Qatar in 2006 (A/HRC/4/23/Add.2); to Belarus, Poland and Japan in 2009 (A/HRC/14/32/Add.2, Add. 3 and Add.4); to Egypt, Argentina and Uruguay in 2010 (A/HRC/17/35/Add.2, Add.3 and Add.4); to Thailand and Australia in 2011 (A/HRC/20/18/Add.1 and Add.2); to the United Arab Emirates, Gabon and the Philippines in 2012 (A/HRC/23/48/Add.1, Add.2 and Add.3); to Morocco, Italy, Bahamas and Belize in 2013 (A/HRC/26/37/Add.3, Add.4, Add.5 and forthcoming Add.6); and Seychelles in 2014 (A/HRC/26/37/Add.7).

The impact of country visits on anti-trafficking efforts at the national, regional and international levels has also been noted by partners.³ In this regard, the Special Rapporteur was pleased to learn that the recommendations she made to Member States, following country visits, for reforming national legislative and anti-trafficking policy frameworks in line with international norms had largely been implemented. This has meant shifts in policy and practice around trafficking. For example, in Morocco, a new migration policy includes measures to address trafficking in persons; in Japan, the action plan to combat trafficking in persons now covers all elements of the international definition of trafficking and includes specific provisions for trafficking in men and boys; in Australia, the national action plan to combat human trafficking and slavery is set to address a number of her recommendations; and in Belarus, the national plan of action for gender equality includes measures for the protection of, and assistance to, victims of trafficking. The establishment of, or amendments to, national anti-trafficking laws in conformity with the definition in the Palermo Protocol and the ratification of international and regional instruments for the protection of victims of trafficking were also positive achievements following a country visit by the Special Rapporteur. In that regard, States, including Australia, Lebanon, Seychelles and Thailand, have promulgated new national legal instruments addressing various aspects of trafficking in persons while others, such as Belarus, Bosnia and Herzegovina and Japan, have amended the relevant anti-trafficking provisions in existing laws. Recommendations concerning the establishment or strengthening of national rapporteurs on trafficking, and equivalent mechanisms, and cooperation with civil society organizations were, for the most part, followed up. In a number of countries, interministerial anti-trafficking committees have been established and services, including hotlines and shelters, to provide assistance to victims of trafficking put in place (Japan, Lebanon, Seychelles). Examples of how States have strengthened their partnerships with authorities in source, transfer and destination countries include bilateral agreements entered into with other States, as was done by Bosnia and Herzegovina and Thailand, or by supporting various anti-trafficking programmes in source countries such as Japan. A number of countries have also strengthened collaboration with civil society organizations in the provision of assistance to victims of trafficking and the development of national referral guidelines for the identification of, and support to, victims in a coordinated manner.

3. The Special Rapporteur is grateful for the information provided by the Governments of a number of the countries she visited on the follow-up actions that have been taken to implement her recommendations. ↩

The Australia-Asia programme to combat trafficking in persons, launched in 2013 to strengthen criminal justice responses in the ASEAN region, is another example of States strengthening partnerships among themselves to address trafficking in persons. Capacity-building of front-line officers dealing with trafficking, the allocation of resources and the establishment or strengthening of data collection mechanisms are also areas which have received attention by States following a visit by the Special Rapporteur. Several international organizations have noted that country visits have provided valuable opportunities for stakeholders to convey their views and insights to the higher levels of Government and that the subsequent reports were an excellent source of useful, high-quality information and advocacy tools.

In addition, country visits have enabled the mandate to disseminate information systematically about, and advocate for, the ratification and implementation of regional norms and standards related to trafficking in persons. For example, the Special Rapporteur was pleased to learn that after her visit, Italy transposed into its national legislation directive 2011/36/EU of the European Parliament and Council on preventing and combating trafficking in human beings and protecting its victims. Furthermore, the Organization for Security and Cooperation in Europe (OSCE) noted that the country reports of the Special Rapporteur were an excellent source of information for its work, including the preparation of the country visits of the OSCE Special Representative and Coordinator for Combating Trafficking in Human Beings.

Through recommendations and checklists, the Special Rapporteur has actively sought to promote normative clarity around trafficking and helped flesh out the substantive content of key rules and obligations. That work has been firmly based on existing international standards, as recognized in the major human rights treaties and the specialist anti-trafficking instruments. A major output of that aspect of the work of the Special Rapporteur is a set of basic principles on the right to an effective remedy for victims of trafficking that she has developed after extensive consultation with stakeholders in all regions. The principles seek to bring clarity to the concept of this right and its application (see A/HRC/17/35 and A/HRC/26/18). She has also outlined a series of clear and practical recommendations for businesses and States to help them eliminate trafficking in the supply chain (A/67/261) and a draft set of benchmarks and indicators for ensuring that supply chains are free of trafficking (A/HRC/23/48/Add.4), which were prepared following consultation with business experts.

The meetings, events and consultations convened by the Special Rapporteur on a variety of topics have unanimously been identified as one of the good practices developed in the course of the mandate towards a continuous dialogue with all stakeholders, including those beyond the traditional actors. Besides serving as a platform for the exchange of ideas, such events contribute to the establishment and maintenance of networks of diverse stakeholders from different regions to continue learning from and promoting each other’s work. Civil society organizations have appreciated participating in such events, which has raised the visibility of their work and given it added impetus at the regional and international levels.

With regard to national rapporteurs and equivalent mechanisms, the Special Rapporteur wishes to mention specifically the outcomes of the two consultative meetings she convened in 2013 and 2014 in order to foster partnerships and enhance collaboration, in fulfilment of General Assembly resolutions 59/166, 61/144, 63/156, 64/293, 68/186 and 68/192 and in follow-up to reports to the Human Rights Council by the Special Rapporteur and to the Economic and Social Council by the High Commissioner for Human Rights (see, for example, E/2002/68/Add.1, A/HRC/10/16 and Corr. 1 and A/HRC/26/37/Add.1) and directives of the European Union, including directive 12011/36EU. According to statements made by participants at the twenty-sixth session of the Human Rights Council and the responses to a questionnaire sent out by the Special Rapporteur, those outcomes were highly appreciated. The establishment of an informal network of such mechanisms from all over the world in order to address trafficking in persons consistently, exchange information and best practices and build on different national experiences was one of the main outcomes of those meetings. Other recommendations included the need for a global baseline study in order to better understand the roles of national rapporteurs and equivalent mechanisms and provide guidance for their work.

Action on communications and urgent appeals is another method whereby the Special Rapporteur responds effectively to reliable allegations of human rights violations, with a view to protecting the rights of actual or potential victims of trafficking. In accordance with established procedures, the Special Rapporteur communicates the case to the Government concerned, requesting clarification and action, either through an allegation letter or through an urgent appeal where the alleged violation is time-sensitive and/or of a very grave nature.

The role of the communications procedure has been recognized by many as a tool enabling the mandate holder to enter into a dialogue with Governments on alleged human rights violations committed against trafficked persons. Since the mandate was established, a total of 99 communications have been sent (out of which 92 were sent jointly with other mandate holders) and a total of 54 responses received from States. An assessment of the replies of States demonstrates that in the majority of cases they are willing to examine the alleged violation and provide clarification and information on actions taken. Civil society and other organizations have also found that this mechanism can be used as an advocacy tool for raising issues at an international level and protecting the rights of victims of trafficking.

In line with the engagement of the mandate holder with non-State actors in the fight against trafficking in persons, she has directly engaged with businesses in order to contribute to a culture of corporate responsibility by addressing issues such as labour trafficking, the supply chain and demand. For example, the mandate holder, jointly with other relevant mandate holders, including the Working Group on business and human rights, issued communications to businesses requesting clarification of allegations of trafficking in persons within their operations. She has also used such communications as an important mechanism for raising awareness of the different tools that can be used to ensure that the supply chain is free from trafficking.

The Special Rapporteur has identified five areas of cross-cutting concerns, aspects and manifestations of trafficking that have emerged as major themes of importance to the anti-trafficking movement as a whole, namely: (a) the right of victims to assistance, protection and support; (b) the right of victims to remedies; (c) human rights in the criminal justice response; (d) the prevention of trafficking — identifying the core strategies; and (e) trafficking in persons for the removal of organs. It should be noted that the breadth of the work of the Special Rapporteur is considerable and the present report does not include all substantive areas dealt with by the mandate holders.

Rights of victims to assistance, protection and support

In line with the rights-based and victim-centred approach, the mandate holders have focused strongly on elaborating the legal dimensions of the rights of victims to assistance, protection and support, and in considering the extent to which those rights are respected and protected in practice. It is abundantly clear that States are indeed required to provide immediate assistance and support to victims of trafficking within their jurisdiction and to protect them from further harm.⁴

4. See Commentary on the Recommended Principles and Guidelines to Human Rights and Human Trafficking (United Nations publication, Sales No. E.10.XIV.1), pp. 141-151. ↩

In order to achieve this, a swift and accurate identification of victims is fundamental to the realization of the rights to which they are legally entitled (see A/64/290, para. 91). Mandate holders have drawn attention to the failure of criminal justice systems to identify trafficking victims, who are often simply treated as criminals, arrested and deported with no opportunity to be identified and provided with the necessary assistance as trafficked victims” (ibid.).⁵ The Special Rapporteur has consistently advocated for more thorough and collaborative approaches to victim identification, including between victim support agencies and front-line officers (see A/HRC/20/18, paras. 45-53).

5. See also A/HRC/20/18, paras. 23 and 24, E/CN.4/2005/71 para. 10, E/CN.4/2006/62/Add.3, paras. 47, 58, 63 and 64. ↩

The Special Rapporteur has also systematically raised concerns about the low identification rates and provision of appropriate assistance to men and boys who have been trafficked, which is a widespread problem in many States.⁶ The continuing strong focus on trafficking for sexual exploitation at the expense of a focus on trafficking for labour exploitation, the reluctance of male victims of trafficking to self-identify (for cultural and other reasons) and the inaccessible, or not properly adapted, support provided to them are possible reasons for the slow recognition of the issue of trafficking in men.

6. See A/HRC/23/48/Add.2, paras. 62 and 92; A/HRC/23/48/Add.1, para. 81 (v); A/HRC/17/35/Add.4, para. 85; A/HRC/14/32/Add.3, para. 61; A/HRC/14/32/Add.4, para. 43, and A/HRC/26/37/Add.4, para. 6. ↩

In addition, the Special Rapporteur has regularly upheld the importance of the now widely accepted principle that victims of trafficking should not be punished, or indeed prosecuted, “for unlawful acts committed by them as a direct consequence of their situation as trafficked persons or where they were compelled to commit such unlawful acts” (CTOC/COP/WG.4/2009/2, para. 12(b)).⁷

7. See also A/HRC/20/18, paras. 23-30 and 89; A/65/288, para 20; and A/64/290, para. 95. ↩

Since the inception of the mandate, the mandate holders have clearly affirmed the right of victims of trafficking to access effective remedies for the harms committed against them. That has been the subject of systematic and detailed attention by the Special Rapporteur, because trafficked persons are frequently left without remedies or the support necessary to access them, a situation that exacerbates the risk of further human rights violations. To that end, she has developed a set of basic principles on the right to effective remedies for victims of trafficking. The process for developing such principles started in 2009 with an expert meeting, an online discussion forum and two thematic reports to the Human Rights Council and the General Assembly in 2011 on this topic, where the draft set of basic principles were presented for the first time (A/HRC/17/35 and A/66/283). Following the adoption of Human Rights Council resolution 20/1, the draft basic principles underwent a highly participatory process of consultation aimed at seeking inputs and suggestions from Member States and a variety of other stakeholders to refine the principles (see A/HRC/26/18). In 2013 and 2014, the Special Rapporteur convened five regional and two global consultations jointly organized with the Office of the United Nations High Commissioner for Human Rights. The principles were then revised on the basis of the views expressed during those consultations and some 30 written submissions from States and other stakeholders during the same period. They were presented in a revised and final version to the Human Rights Council at its twenty-sixth session in June 2014 (see A/HRC/26/18, annex, and the annex to the present report).

The basic principles on the right to an effective remedy for trafficked persons are firmly based on established rules of international law. While States are not usually the direct source of trafficking-related harm, they may not absolve themselves of legal responsibility on this basis (see A/66/283, para. 12). Rather, the obligation to provide remedies, or at least access to remedies, to victims of trafficking is set out in a number of relevant instruments⁸ and has been widely recognized by United Nations bodies and regional courts.⁹

8. See the Palermo Protocol, art. 6 (6) and the Council of Europe Convention on Action against Trafficking in Human Beings, art. 15. ↩
9. See, for example, Rantsev v. Cyprus and Russia, European Court of Human Rights, application No. 2595/04, judgement of 7 January 2010. ↩

In order to realize fully the rights of victims to effective remedies, States must meet both substantive and procedural obligations. The Special Rapporteur has recognized four substantive components of the right to a remedy that are applicable in cases of trafficking in persons: restitution, rehabilitation, compensation and satisfaction and guarantees of non-repetition.¹⁰ The procedural obligations, as conceived by the Special Rapporteur, are the range of measures needed to guarantee access to an effective remedy, including access to information, legal assistance and regularization of residency status, which contribute to the realization by trafficked persons of the substantive components of the right to an effective remedy. The Special Rapporteur has come to appreciate that certain preconditions must be fulfilled if the right to a remedy for victims of trafficking is to be realized in practice. They include improvements in identification procedures; the institution of a “reflection and recovery” period, during which victims can receive legal and other assistance; and a review of any legal obstacles to access.

10. See the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted by the General Assembly in resolution 60/147. ↩

In response to requests by States for greater clarity as to when international law mandates the right to remedy, section I of the principles (rights and obligations) clarifies the obligation of the State to provide a right to remedy, including restitution, compensation, rehabilitation and recovery, satisfaction and guarantees of non-repetition, when it commits an internationally wrongful act, meaning either that the harm is attributed to the State or it has failed to exercise due diligence. The basic principles also emphasize the importance of bilateral and multilateral cooperation between States, enabling them thereby to meet their obligations on the right to remedy, as well as of the principle of non-refoulement and access to asylum procedures as components of the right to an effective remedy. Section II (on access to the right to a remedy) defines other procedural elements of the right to remedy and, in response to the submissions received, further clarifies areas, such as the nature of assistance necessary for access to remedies, the scope of the reflection and recovery period and ensuring equal access to the right to remedy, including through gender-sensitive mechanisms. The principle of non-punishment of victims of trafficking in persons and the rights to safety, privacy and confidentiality have also been added as a result of the consultative process. Section III (on forms of the right to remedy) addresses the substantive elements of the right to remedy and now incorporates international law definitions of each of the forms of the right to remedy, further detail on operationalizing the remedies of restitution, compensation, rehabilitation and recovery and new paragraphs on the remedies of satisfaction and guarantees of non-repetition. Section IV (on the right to remedy for child victims of trafficking) clarifies the additional elements necessary to ensure a human rights-based approach for trafficked children, including the scope of the requirement to give due weight to a child’s views.

Human rights in the criminal justice response

Over the course of the mandate, the Special Rapporteur has noted that the development of the Palermo Protocol within a framework of crime control has raised understandable concerns that the focus would diminish the attention and commitment due to the human rights of victims. She believes that there should be no conflict between the rights of victims and the responses of the criminal justice system. Administration of justice systems must be geared towards guaranteeing access to justice to victims, providing an effective remedy, promoting respect for the fundamental human rights of victims, including offenders, and ensuring adequate protection and assistance to victims of trafficking in order to prevent revictimization and avoid the danger of being retrafficked (A/64/290, para. 99). Moreover, in recognition of the pressing problems associated with the responses of the criminal justice system and the lack of available guidance, the report of the Special Rapporteur on a rights-based approach to the administration of criminal justice affirmed the obligation of States to criminalize trafficking; to investigate and prosecute trafficking with due diligence; and to provide for appropriate penalties (see A/HRC/20/18).

Prevention of trafficking: identifying core strategies

The mandate holders have always accepted that the concept of prevention encompasses the full range of measures aimed at preventing future acts of trafficking from occurring. That includes the international legal requirement that States act with due diligence to prevent trafficking and the human rights violations with which it is associated. While the mandate holders have examined the general concept of prevention and particular aspects of a preventive approach, including addressing demand and supply chain transparency and accountability (see A/65/288, paras. 29-38, A/HRC/23/48 and A/67/261), they have not been able to address them in full. Rather, they have sought to raise awareness of some issues among States, such as the ones set out below, and others that will help contribute to a greater understanding of what is required and how it may be achieved.

With regard to safe migration, the creation of opportunities for legal, gainful and non-exploitative migration is crucial for preventing future trafficking and is a responsibility that falls on countries of origin, as well as on countries of destination. It is important to ensure that safe migration efforts are developed and implemented within a human rights framework, in order to ensure that basic rights, such as freedom of movement and the prohibition on discrimination, are not compromised.

The mandate holders have ascertained that the failure to protect the rights of workers, and in particular migrant workers, is a major contribution to exploitation related to trafficking. By way of prevention, the Special Rapporteur has repeatedly called on States to strengthen enforcement of labour laws and build the capacities of labour inspectorates to supervise workplaces, including common sites of exploitation for trafficked persons such as brothels, private homes, farms and small factories, and take steps to regulate the recruitment agencies, which along with the legitimate businesses that use their services, are profiting handsomely from the exploitation of migrant workers.

Awareness-raising campaigns concerning the plight and rights of trafficked persons can also be important methods of prevention for at-risk communities and the public in countries of destination, transit and source. However, the Special Rapporteur has noted that public awareness campaigns are sometimes crude in conception and execution, employing sensationalist scare tactics or designed to stop people from moving. There has also been very little critical examination of the effects of such campaigns, including the unintended negative effects of prevention efforts.

Trafficking feeds into a global market that seeks out cheap, unregulated and exploitable labour and the goods and services that such labour can produce. The mandate holders have affirmed that international law requires States to discourage the demand that fosters exploitation related to trafficking.¹¹ The Special Rapporteur has examined demand in detail in the context of prevention (A/65/288, paras. 29-38) and in a dedicated report (A/HRC/23/48). In the latter report, she recommended that States take steps to understand the nature of demand and develop human rights-based measures to discourage it, based on accurate information and experience. She also noted that measures to address demand should not in themselves negatively affect individual rights and freedoms.

11. See the Palermo Protocol, art. 9 (5) and the Council of Europe Convention on Action against Trafficking in Human Beings, art. 6. ↩

The mandate holders have maintained a strong focus on non-State actors and the role they can or should play in preventing and responding to trafficking in the supply chain through public-private partnerships. The direct engagement of the Special Rapporteur with business corporations through research and wide-ranging consultations has resulted in the adoption of tools for businesses and States to ensure that supply chains are free of trafficking (see para. 20 above).

Consistent with the commitment of the mandate to tackling difficult, emerging and under-researched issues, the Special Rapporteur has focused her attention on trafficking in persons for the removal of organs as a form of exploitation related to trafficking, with a view to contributing to the international conversation at a pivotal point. Her report to the General Assembly on the issue (A/68/256) was based on an expert background paper, peer-reviewed by an informal group of transplant specialists, ethicists and researchers.

The main contributions of the mandate holders to key conceptual and legal gains include a broader focus on the parameters of the definition of trafficking in persons and on the obligations and responsibilities of States, and greater clarity regarding the rights of victims of trafficking.

With the benefit of an agreed definition of trafficking in persons, new international, regional and national laws, clearer policies and heightened political commitment, the mandate holders have been able to make a critical contribution at a unique moment in time. They have actively embraced and advocated for the definition of trafficking that is now enshrined in international law through the Palermo Protocol and other instruments and is now reflected in the laws of many States. That approach has been instrumental in helping to expand the focus of international and national anti-trafficking efforts beyond the previous focus on trafficking for the exploitation of prostitution and in contributing to greater conceptual clarity around the definition of trafficking.

Furthermore, an assessment of the extent to which a situation, initiative or response is in conformity with international human rights law is possible if the human rights of victims of trafficking can be asserted with a sufficient level of detail by specifying what those rights actually are and what obligations they impose upon States. That task is made somewhat more difficult by the fact that the central international instrument relevant to trafficking, the Palermo Protocol, is not clear on the issue of the rights of victims. There are general references to human rights in the Protocol and it includes a number of obligations that may be understood as intended to protect victims. However, on its own, it makes little headway in establishing the precise nature of the entitlements of victims and how they should be satisfied. It is also relevant to note that when the mandate was first instituted, the international human rights system itself had not contributed substantially to clarifying the substantive content of the relevant rights and obligations. While there was regular condemnation of the human rights violations associated with trafficking, the practice was rarely linked to the violation of a specific right in a specific treaty. Throughout all aspects of their work, from country missions to thematic studies, the mandate holders have helped to confirm and promote awareness of those important rights and provided greater clarity regarding the rights of victims.

To gain clarity regarding the obligations and responsibilities of States, the mandate holders have examined the implications of the legal obligation on States to take steps to prevent trafficking, detailing actions that should be taken within the framework of a human rights approach (A/HRC/10/16, paras. 45-47 and Corr. 1). The mandate holders have also been very clear that the obligations of States extend beyond those that relate immediately to victims. For example, in relation to the responses of the criminal justice system, the obligation on all States to investigate and prosecute trafficking and the obligation to protect the rights of suspects and the right to a fair trial has been confirmed (see, for example, A/HRC/20/18, para. 71 and A/HRC/20/18/Add.2, para. 77 (h)). With regard to the link between corruption and trafficking, the mandate holders have also highlighted in their country visit reports that States are required to act in preventing such corruption and dealing with it once it is uncovered (see, for example, A/HRC/20/18, para. 90, and A/HRC/20/18/Add.2, paras. 72 and 73).

The work of the mandate holders has confirmed that the problem of human trafficking continues to be endemic in all parts of the world. While awareness of trafficking and of relevant rights and obligations has improved significantly, it has not resulted in substantial improvements on the ground. Large numbers of women, men and children continue to be exploited; very few receive support, protection or redress; few of the perpetrators are apprehended; and in every country the number of prosecutions remains stubbornly low. It is thus pertinent to draw out the challenges that are likely to be of particular concern to the international community and to the holders of the mandate as it evolves in the future.

The issue of clarifying the parameters of trafficking in the international legal definition is one of the obstacles to a more effective response to trafficking in persons, as it would be a mistake to assume that the adoption of the definition has ended discussion around the parameters of trafficking. In fact, there is a continuing vigorous debate within and among States and other actors over what conduct is or is not defined as “trafficking”.

Strengthening the accountability of non-State actors and the involvement of civil society in combating and preventing trafficking in persons, including lessening the tensions between civil society groups working on trafficking and Governments, is another challenge. Furthermore, while the Special Rapporteur recognizes the power of the media in raising community awareness of trafficking in all its forms and informing vulnerable groups about certain risks, she notes repeated examples of media sensationalism, manifested for example through a prurient and overly narrow focus on sexual exploitation. Failure to protect the privacy of victims adequately; the stigmatization of victims; and fostering confusion between trafficking and other phenomena, such as irregular migration and migrant smuggling, represent further difficulties.

Securing compliance mechanisms at the national, regional and international levels is a further challenge. The mandate holders have drawn attention to worrying gaps between the obligations of States with regard to trafficking (what States are required to do or refrain from doing) and the extent to which those obligations are met in practice (what actually happens). That is particularly the case with regard to the rights of victims, which, despite being protected by international and national laws, are often disregarded. That is not always the result of a lack of political will. The complexity of the trafficking phenomenon, uncertainty about aspects of the solution and the fact that States are rarely the direct perpetrators of trafficking-related harm, all complicate the task of securing compliance with international legal rules. Moreover, national implementation mechanisms that address trafficking in persons on the basis of a rights-based and victim-centred approach are often weak.

The Special Rapporteur generally welcomes the unilateral compliance mechanism established by the Office to Monitor and Combat Trafficking in Persons of the Department of State of the United States of America, which undertakes an annual assessment of the trafficking situation in States worldwide and the quality of national responses. However, she cautions that the criteria used to assess national performance should be explicitly based on international standards. That is not just essential to the credibility of the mechanism, it is also an important way to strengthen the international legal framework and affirm its key standards.

Partners have emphasized that the mandate holders could make a further contribution to the understanding of trafficking in persons by continuing to provide greater clarity on emerging and new forms of trafficking. Some themes proposed in this regard include trafficking for the purpose of forced labour (outside the sex sector), begging, criminality and forced marriage. The issue of trafficking of men and boys and the link between trafficking and corruption were also proposed. Further research on trafficking in persons for the purpose of organ removal and on prosecutions and punishments was deemed useful to determine the types of penalty imposed on traffickers and to what extent they acted as a deterrent. A focus on strengthening the accountability of non-State actors and the engagement of civil society in the efforts to combat trafficking in persons was also suggested.

Given the interlinkages between the mandates of the Special Rapporteur on trafficking in persons, especially women and children, the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, the Special Rapporteur on the sale of children, child prostitution and child pornography and the Special Rapporteur on the human rights of migrants, enhanced collaboration could be sought through regular consultations and joint thematic studies to discuss conceptual issues, such as the adoption of children.

Partners have also suggested that the development of indicators for evaluating the impact of anti-trafficking efforts and tools for victim identification could be considered in the future work of the mandate holders, as well as further engagement with the Inter-Agency Coordination Group against Trafficking in Persons and strategic cooperation with the media sector.

The Human Rights Council is to be congratulated for its wisdom and foresight in establishing a mechanism that has ensured human rights retain their rightful place at the centre of the international response to trafficking. That role has been particularly important in light of the fact that the key international treaty on trafficking was established outside the human rights system. States and partners, including United Nations bodies, intergovernmental organizations, national human rights institutions and civil society, surveyed as part of the preparation for this report, have affirmed the positive impact of the mandate holders on their work and on the work of combating trafficking in general. They have drawn particular attention to the contribution of the Special Rapporteur to standard-setting; to mainstreaming human rights into the anti-trafficking discourse; and to drawing attention to emerging and less well-known forms of trafficking.

On this basis, the Special Rapporteur offers the following recommendations.

Future mandate holders could focus on conceptual and definitional overlaps; the consequences of a human rights-based approach to trafficking; measuring the impact of anti-trafficking interventions, corruption and trafficking; and the effectiveness of victim identification tools. They should:
(a) Consider undertaking studies in relation to emerging areas of concern, such as illicit recruitment practices, trafficking in men for forced and exploitative labour, trafficking for forced begging and criminal activities, trafficking for forced or servile marriage and return and the risk of retrafficking. They should also consider giving further attention to trafficking in persons for the removal of organs in continuation of the initial work undertaken by the Special Rapporteur;
(b) Continue cooperating with international, regional and national mechanisms to combat trafficking in persons, in consultation with victims. That could also include regularly convening consultative meetings with national rapporteurs and equivalent mechanisms;
(c) Consider enhancing collaboration with the Special Rapporteur on contemporary forms of slavery, including its causes and its consequences, the Special Rapporteur on the sale of children, child prostitution and child pornography and the Special Rapporteur on the human rights of migrants, to capitalize on common interests and approaches;
(d) Continue promoting implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, and relevant regional instruments, as well as other standards and policies related to trafficking in persons, including endorsing the draft basic principles on the right to an effective remedy for trafficked persons and encouraging States to incorporate them into national legislation;
(e) Continue promoting the involvement of civil society in all international and regional anti-trafficking forums, including discussions on the review mechanism for the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.

States and stakeholders should continue using communications, which generally provide an important vehicle to remind States individually of their international legal obligations with respect to responding effectively to trafficking and ensuring that the rights of victims under their jurisdiction or control are protected and respected.

While noting the non-binding nature of the basic principles on the right to an effective remedy for trafficked persons, the Special Rapporteur recommends that the Human Rights Council or the General Assembly endorse them and that Member States incorporate them into their national legal frameworks, so that they can become a living tool for practitioners in their anti-trafficking work.

Victims of trafficking in persons, as victims of human rights violations, have the right to an effective remedy for any harm committed against them.

All States, including countries of origin, transit and destination, shall provide adequate, effective and prompt remedies to victims of trafficking in persons, including non-citizens, within their territory and subject to their jurisdiction, when the State is legally responsible for any harm committed against them; this includes when harm is attributable to the State or when the State has failed to exercise due diligence to prevent trafficking, to investigate and prosecute traffickers, and to assist and protect victims of trafficking in persons. The right to effective remedy includes restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Regardless of whether a State is responsible for the original harm, the State shall provide and/or facilitate access to remedies as required by binding international law, including anti-trafficking instruments and international human rights law.

The right to an effective remedy shall be provided to victims of trafficking in persons without discrimination in law or in practice on any ground, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status, including their age, their immigration status, their status as victims of trafficking in persons, their occupation or the types of exploitation to which they have been subjected.

The right to an effective remedy encompasses both the substantive right to remedies and the procedural rights necessary to secure access to them. The right to an effective remedy reflects a victim-centred and human rights-based approach that empowers victims of trafficking in persons and respects fully their human rights.

Bilateral and multilateral State cooperation is an important means enabling States to meet their obligations with regard to the right to an effective remedy for victims of trafficking in persons.

Whether States are legally responsible for harm or otherwise have an obligation to provide and/or facilitate access to remedies under international law, procedural rights and preconditions for remedies include that victims of trafficking in persons:
(a) Have a legally enforceable right to have access to remedies, including through criminal, civil, labour or administrative proceedings, irrespective of the victim’s immigration status, return to his or her country of origin or absence from the jurisdiction. This includes the right of victims of trafficking in persons to have effective access to asylum procedures;
(b) Are promptly and accurately identified, including through adequate procedures and appropriate training for State officials and cooperation between relevant authorities and non-governmental organizations;
(c) Are fully and promptly informed, in a language and form they understand, of their legal rights, including their right to have access to remedies, the remedies available, and procedures for obtaining remedies;
(d) Are provided with a reflection and recovery period, whether as identified or presumed victims, with access to such services as housing and psychological, medical, social, legal, employment, professional and material assistance. Following the said reflection and recovery period, a victim of trafficking in persons should be provided with any residence status necessary, such as to allow the victim of trafficking to exercise his or her right to remain during proceedings or as a form of restitution;
(e) Are provided with assistance necessary to have access to remedies, regardless of their immigration status, including medical, psychological, social, administrative and qualified linguistic and legal assistance, such as free legal aid;
(f) Are not detained, charged or prosecuted for activities that are a direct consequence of their situation as victims of trafficking in persons, including for violations of immigration law;
(g) Have a right to remain lawfully in the country in which the remedy is being sought for the duration of proceedings, without prejudice to any claim they may have to the right to remain on a more permanent basis as a remedy in itself;
(h) Have equal access to the right to remedy, including by ensuring that all investigations, prosecutions and other mechanisms are gender-sensitive; take into full account the different assistance and protection needs of women, men, girls and boys; address sexual and gender-based violence appropriately; ensure that victims are able to come forward to seek and obtain redress; prevent discriminatory evidence and afford equal weight to the testimony of women and girls; and avoid trauma, revictimization and stigmatization;
(i) Have access to remedies that is not dependent upon their capacity or willingness to cooperate in legal proceedings;
(j) Have their rights, and the rights of their families and witnesses, to safety (including from intimidation and retaliation), privacy and confidentiality protected before, during and after proceedings.

States shall provide restitution that, whenever possible, restores the victim to the original situation before the trafficking except in circumstances that place the victim at risk of being retrafficked or of further human rights violations.

Restitution includes, as appropriate:
(a) Restoration of liberty, including release of the victim from detention;
(b) Enjoyment of human rights and family life, including reunification and contact with family members;
(c) Safe and voluntary repatriation to one’s place of residence, if applicable;
(d) Temporary or permanent residence status, refugee status or third-country resettlement on such grounds as the inability of States to guarantee that return is safe for victims of trafficking in persons and/or their families, respect for the principle of non-refoulement, the risk of retrafficking and the risk of reprisals;
(e) Recognition of the victim’s legal identity and citizenship;
(f) Restoration of the victim’s employment;
(g) Assistance and support to facilitate social integration or reintegration of repatriated victims;
(h) Return of property, such as identity and travel documents and other personal belongings.

States shall provide victims of trafficking in persons with compensation for any economically assessable damages as appropriate and proportional to the gravity of the violation and the circumstances of each case. Mere difficulty in quantifying damage shall not be invoked as a reason to deny compensation.

Forms of compensation include, as appropriate:
(a) Damages for physical or mental harm;
(b) Damages for lost opportunities, including employment, education and social benefits;
(c) Reimbursement of costs of necessary transportation, temporary child care, temporary housing or the movement of the victim to a place of temporary safe residence;
(d) Payment for material damages and loss of earnings, including loss of earning potential, lost income and due wages according to national law and regulations regarding wages;
(e) Moral or non-material damages resulting from moral, physical or psychological injury, emotional distress, pain or suffering;
(f) Reimbursement of legal fees and other costs or expenses incurred, including those incurred relating to the participation of the victim in criminal investigation and prosecution processes;
(g) Reimbursement of costs incurred for legal or expert assistance; medicine and medical services; physical, social, psychological or psychiatric treatment or services; or any occupational therapy or rehabilitation required by the victim;
(h) Reimbursement for any other costs or losses incurred by the victim as a direct result of being trafficked and as reasonably assessed by the relevant body or bodies.

States shall ensure that laws, mechanisms and procedures are in place to enable victims of trafficking in persons to have access to compensation, including:
(a) To sue offenders or others for civil and/or labour damages;
(b) To secure awards or orders from criminal courts for compensation from persons convicted of offences;
(c) To provide access to established national funds or schemes for victims of crimes and/or to establish dedicated funds or schemes for victims of trafficking in persons to claim compensation from the State for damages, including when compensation cannot be obtained from perpetrators;
(d) To freeze and confiscate the instruments and proceeds of trafficking, including for the purposes of supporting and compensating victims of trafficking in persons;
(e) To enforce reparation judgements, including foreign judgements.

States shall provide victims of trafficking in persons with the means necessary for their rehabilitation and recovery, including medical and psychological care, as well as legal and social services, such as shelter, counselling, health services and linguistic support.

States shall ensure that the access of victims of trafficking in persons to rehabilitation and recovery measures is not dependent on their capacity or willingness to cooperate in legal proceedings.

States shall provide satisfaction as a non-financial form of reparation designed to compensate moral damage or damage to the dignity or reputation of the victims of trafficking in persons.

Satisfaction should include any or all of the following:
(a) Effective measures aimed at the cessation of continuing violations;
(b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety, privacy and other interests of the victim of trafficking in persons, the victim’s relatives, witnesses or persons who have intervened to assist the victim or to prevent the occurrence of further violations;
(c) An official declaration or a judicial decision restoring the dignity, reputation and the rights of the victim of trafficking in persons and persons closely connected with the victim, according to the circumstances of the case;
(d) Public apologies, including acknowledgement of the facts and acceptance of responsibility;
(e) Judicial and administrative sanctions against persons liable for the violations.

States shall provide guarantees of non-repetition of trafficking in persons to combat impunity and prevent future violations. Such measures include, where applicable, any or all of the following:
(a) Ensuring the effective investigation, prosecution and sanctioning of traffickers;
(b) All measures necessary to protect the victim of trafficking in persons from retrafficking, including through safe return, temporary or permanent residence status where applicable, and integration support;
(c) Providing or strengthening the training of law enforcement, immigration and other relevant officials in the prevention of trafficking in persons;
(d) Strengthening the independence of the judiciary;
(e) Modifying legal, social and cultural practices that cause, sustain or promote tolerance to trafficking in persons, including gender-based discrimination and situations of conflict and post-conflict;
(f) Effectively addressing the root causes of trafficking, such as poverty, gender inequality and discrimination;
(g) Promoting codes of conduct and ethical norms, in particular international standards, for public and private actors, including to promote public-private partnerships against trafficking in persons;
(h) Protecting legal, medical, health-care and other related professionals and human rights defenders who assist victims of trafficking in persons.

In addition to the above, the State shall provide and/or facilitate access to remedies for child victims of trafficking by ensuring that:
(a) The best interests of the child are a primary consideration, taking into account the individual circumstances of the child, including age, gender, degree of maturity, ethnic, cultural and linguistic background, and protection needs. When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and be treated as such until his or her age is verified;
(b) A child who is capable of forming his or her own views enjoys the right to express those views freely in all matters affecting him or her, and the views of the child are given due weight in accordance with the child’s age and maturity. To enable participation by the child, States should provide trafficked children with accessible information on all matters affecting their interests, such as their situation, rights, services available and all remedies, including the processes of family reunification and/or repatriation;
(c) Procedures for obtaining access to and enforcing remedies are effective, child-sensitive and readily accessible to children and their representatives, including legal guardians appointed to represent the interests of the child;
(d) Child victims of trafficking are provided with appropriate physical, psychosocial, legal, educational, health-care and safe and suitable housing assistance and protection (including protection during legal proceedings), taking into full account their age and special vulnerabilities, rights and needs;
(e) Adequate and appropriate training on the specific needs, rights and vulnerabilities of child victims, particularly legal and psychological training, is provided for persons working with child victims of trafficking.