Conflict-Related Sexual Violence Symposium: The Non-Punishment Principle and the Myriad Failings in the Protection of Victims of Trafficking

[Siobhán Mullally is the UN Special Rapporteur on Trafficking in Persons, especially women and children, and the Established Professor of Human Rights Law and Director of the Irish Centre for Human Rights in the National University of Ireland, Galway. This is a post in our joint blog symposium building on the discussion focusing on accountability for conflict-related sexual violence crimes associated with slave trade, slavery and trafficking, held as part of the Digital Dialogue Series, hosted regularly by the UN Team of Experts on the Rule of Law and Sexual Violence in Conflict.]

At its core, the non-punishment principle seeks to ensure that a victim of trafficking is not punished for crimes that she or he was compelled to commit. Punishment of a victim marks a rupture with the commitments made to recognising trafficking in persons as a serious human rights violation, to recognising the rights of victims to protection, and to effective remedies.

Recent UN Security Council and CEDAW Calls to Respect the Non-punishment Principle

The Security Council has repeatedly called on states not to penalise or stigmatise victims of trafficking “for their involvement in any unlawful activities”. A Joint Statement on Human Rights and Humanitarian Concerns Related to Conflict Affected Women and Children in Syria and Iraq called on states to ensure that:  “[…] women, boys and girls who have […] been trafficked or otherwise forced into marriage, sexual slavery and exploitation by UN-listed terrorist groups are not re-victimized by being punished for offences resulting from their exploitation.”

The recent CEDAW GR no.38 on trafficking of women and girls in the context of international migration reiterates the importance of the non-punishment principle, and the obligation of states to ensure its application to all victims “without exception”. The application and scope of the non-punishment principle, CEDAW notes, extends beyond criminal prosecutions, requiring states to ensure that victims are:

“[…] not subject to arrest, charge, detention, prosecution or penalty or are otherwise punished for irregular entry or stay […] or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as victims of trafficking.” (CEDAW GR no.38 para. 98) (emphasis added)

Despite these repeated calls, however, implementation of the non-punishment principle remains weak, and its scope and content contested. In the context of alleged involvement in terrorist crimes, security and risk become the predominant concern of states. The application of the non-punishment principle may be defeated through refusals to provide consular assistance, or to repatriate citizens from conflict-affected regions, or through arbitrary deprivation of citizenship. Separating families, through repatriation of a child but not the parent who may be a victim of trafficking, is also a form of punishment. Those who are secondary victims, children born to victims of trafficking, are entitled to protection as children, in accordance with the international law principle of the best interests of the child.

The Palermo Protocol and the Non-punishment Principle

The Palermo Protocol requires that a State Party whose citizen is a victim of human trafficking, “shall facilitate and accept, with due regard for the safety of that person, the return of that person without undue or unreasonable delay.” (Article 8(1)) Given the otherwise weak obligations of assistance imposed by the Palermo Protocol, it is notable that this obligation is mandatory. Given also that identification of victims or potential victims of trafficking is a positive obligation resting on the State, such practices may breach this well-established obligation and result in a failure to respect the principle of non-punishment.

While it might be argued that there is no enforceable right to diplomatic protection, as such, or to consular assistance, a refusal or failure to provide such protection must be viewed in light of states’ positive obligations to protect victims of trafficking and in light of international human rights law. Those positive obligations include obligations to take operational measures to ensure timely identification, assistance, and non-punishment. These obligations are not met if consular assistance is not provided by the state of which the victim is a national, and in which the ‘act’ element of the crime of trafficking occurred  (e.g. recruitment, abduction or abuse of a position of vulnerability). Similarly, if repatriation of victims is refused, the specific obligation on states to facilitate repatriation is not met, but also related positive obligations of identification, assistance and non-punishment. 

Recent Caselaw and the Non-punishment Principle

In  V.C.L. and A.N.  v UK  (Applications no.74603/12 and 77587/12 ) – the first judgment of the European Court of Human Rights to address the non-punishment principle – the Court repeated the general framework of positive obligations imposed by Article 4 ECHR. These include the duty to take operational measures to protect victims, or potential victims, of trafficking, as well as the procedural obligation to investigate situations of potential trafficking.

The Court was at pains to point out that no general prohibition on the prosecution of victims of trafficking can be construed from the Council of Europe Anti-Trafficking Convention (Article 26) or in its view, any other international instrument, even where the victim was a child – as in these cases. (para. 157) The Court does, however, bring the State’s decision to prosecute within the scope of Article 4 ECHR, noting that prosecution may conflict with the State’s duty to take operational measures to protect a victim, or potential victim, “where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked.” It was “axiomatic” in the Court’s view, that prosecution would be injurious to a victim’s “physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future.” (para. 159)

While the extra-territorial application of Article 4 was not tested by the Court in this case, it is arguable that the provision of diplomatic protection, and related consular assistance, come within the scope of states’ obligations to take operational measures to ensure protection of victims from further harm and to ensure their full recovery. To borrow from the Court, it is “axiomatic” that these substantive and procedural obligations cannot be met when a victim or potential victim is deliberately placed beyond the reach of the State – through a refusal to provide repatriation or consular assistance, or through an arbitrary deprivation of citizenship.

Importantly, the Court also considered the relevance of the non-punishment principle to the right to a fair trial. The failure to undertake a timely assessment of the applicants’ status as victims, not only breached Article 4, they concluded, it also breached the applicants’ Article 6 ECHR rights. As a consequence of the failures of identification, protection, and non-punishment, the applicants were prevented from securing evidence that may have constituted a fundamental aspect of their defence. Again, the Court emphasised that the positive obligation of identification was on the State. The State could not, therefore, argue that it was the defendant who was at fault – especially a minor defendant – in not telling the police or his legal representative that he was a victim of trafficking. (para 200)

The conclusions of the Court bring into sharp focus the myriad failings in the protection of victims of trafficking for the purpose of forced criminality, including in implementation of the non-punishment principle and in situations. These failings are all the more stark where the alleged criminality engages terrorist-related activity.

In the recent UK Supreme Court judgment, Special Immigration Appeals Commission and Secretary of State for the Home Department v R (Begum) [2021] UKSC 7, we also see a failure to engage with the State’s positive obligations of protection of a potential child victim of trafficking, or to take seriously the nexus between punishment, fair trial, and protection.

Conclusion

Deprivation of citizenship has a troubled history, rooted in histories of racism and positioned at the very heart of disruptive movements that seek to exclude and limit the application of human rights norms. Those roots are to the fore again here in the decision to deprive Shamima Begum of her UK citizenship with little evidence that the State’s obligations of identification, protection, and non-punishment of a potential child victim of trafficking have been scrutinised.

Elsewhere, repeated concerns have been raised that a deliberate strategy of linking communities to terrorist activity has led to punishments including deprivation of citizenship, prosecution for immigration related offences, detention, and forced returns. These concerns have been raised repeatedly in relation to the multiple harms endured by the Rohingya community. In such contexts, states’ positive obligations of due diligence, to identify victims and potential victims of trafficking, and to ensure protection and non-punishment are not being met, despite compelling indications of trafficking and risks of trafficking.

Ensuring effective implementation of the non-punishment principle is critical to ensuring that international law on human trafficking is not co-opted by a securitisation agenda. When seeking to apply human rights norms on trafficking in the context of terrorism, the risk is great.  Rather than being perceived as a victim of a serious human rights violation, the victim/survivor is perceived as a perpetrator only. The promise of human rights law remains unmet.