| An Effective Criminal Justice Response to Trafficking in Persons | |
Why do we need an effective criminal justice response to trafficking? It is commonly accepted that the criminal justice response to trafficking in persons has been inadequate. The number of trafficking victims around the world far outnumbers global prosecutions of traffickers, with estimates of trafficking victims ranging from hundreds of thousands to millions, while the global number of prosecutions is thought to be less than 6000.1 From these numbers, it is clear that the number of prosecutions and convictions of traffickers worldwide is insufficient to deter the criminals and to secure justice for the victims.2 An effective criminal justice response to trafficking in persons is essential to ending the current high levels of impunity for traffickers while ensuring security and justice for those who have been trafficked. An effective response includes a strong and realistic legal framework; capable frontline and specialist law enforcement agencies; informed and committed judges and prosecutors; a system for the quick and accurate identification of victims; and mechanisms to promote cooperation between criminal justice agencies within and across borders. At all stages, the national and regional response to trafficking should reflect internationally agreed criminal justice and human rights standards. The following Eight Components of an Effective Criminal Justice Response to Trafficking in Persons3 outline what is required to develop effective, legal, ethical and professional criminal justice responses to trafficking in persons within and between countries. These eight components do not cover the entire human trafficking response. Their scope is limited to criminal justice aspects of that response as these relate to the two main purposes of ‘securing justice for victims and ending impunity for traffickers’. Eight Components of an Effective Criminal Justice Response to Trafficking in Persons |
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1. National Legal Framework |
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1. National Legal Framework |
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| An effective criminal justice response is based on a strong national legal framework that criminalises all aspects of trafficking. Full and effective criminalisation can be achieved either through the passing of a specific anti-trafficking law or by amending existing legislation. What is important is that the national criminal legislation criminalises all aspects of trafficking in persons as this crime is defined by the international community. The international definition of trafficking recognizes that trafficking takes place for a wide range of reasons and not just for sexual exploitation. It also recognizes that men, women, girls and boys are all trafficked. A national legal framework that does not adequately criminalise the full breadth and scope of trafficking, for example by limiting the purposes of trafficking to sexual exploitation or only criminalising trafficking in women and/or children, does not provide an adequate foundation on which to build an effective criminal justice response to trafficking in persons. Trafficking can be a complex crime to investigate and prosecute. A strong national legal framework therefore requires comprehensive criminalisation of crimes related to trafficking. This includes the crimes of forced labour, forced marriage, forced prostitution, illegal recruitment, debt bondage, exploitation of labour and money laundering. Trafficking, by its very nature, is a transnational crime. Therefore, without adequate provision for international legal cooperation, no country can end impunity for traffickers and secure justice for victims. States must ensure the principle of ‘extradite or prosecute4’ is incorporated into their national legal system for trafficking-related crimes. States must legislate, including by establishing and exercising jurisdiction over all trafficking related offences committed within its territory, so that traffickers cannot escape prosecution for their crimes by seeking refuge in other countries. Extradition provisions should be included in the national legal framework and within the terms of extradition treaties to which the State is a party. Additionally, an effective criminal justice response to trafficking in persons requires that the law provides for appropriate penalties in accordance with international standards. This means that the gravity of the crime should be reflected in ‘effective, proportionate and dissuasive sanctions5’ and that those sanctions are consistently imposed on trafficking offenders by the courts. The national legal framework should also provide adequate protection and support for victims of human trafficking. Specifically, important issues of victim detention, victim protection, victim prosecution and victim status must be clearly addressed in individual statutes. |
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| Given the complexity of the crime of trafficking in persons, it is internationally acknowledged that specialist investigative capacity (generally in the form of dedicated trafficking in persons units within national police forces) are necessary for the effective investigation of trafficking cases. Generally, a specialist law enforcement unit results in trafficking cases being investigated more often, more effectively and with better attention to the rights and needs of the victims. A centralized anti-trafficking unit should either have a full mandate to conduct trafficking investigations or act as a supervisory and/or advisory centre for other provincial or local units that undertake trafficking investigations. The dedicated unit should receive training on specialised pro-active and reactive investigative techniques and be practiced in their lawful application. Any such specialised unit must receive adequate on-going funding to enable it to fulfil its responsibilities. This includes funding for the unit to employ and retain sufficient numbers of skilled personnel (with an appropriate personnel profile) and to conduct proactive and reactive trafficking investigations. Not only will the establishment of a specialist unit enhance a state’s ability to respond to the complex phenomenon of trafficking in persons, these highly skilled officers will be able to conduct sensitive investigations in compliance with standard operating procedures for evidence collection and victim protection. |
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| Front line law enforcement officials often lack the knowledge or skills to identify potential victims of trafficking at the earliest opportunity. However, in most trafficking cases, it is police, labour inspectorates, immigration officials or border control officers who are most likely to be in a position to identify suspected cases of trafficking, recognize victims and remove them from harm. In short, most cases of trafficking will first be brought to the attention of front line law enforcement officials, and not their specialist colleagues. Frontline law enforcement officials may not have the basic skills required to perform these tasks properly. Most frontline officials in Southeast Asia and elsewhere have not received investigation skills training or training in trafficking in persons as a crime. Front line officials will generally be responsible for victim identification and safety, evidence collection and preservation and detention of suspects and must be trained to be able to perform these tasks effectively. It is important that frontline law enforcement agencies can distinguish between trafficking and other forms of irregular migration, know how to provide immediate care and protection for victims of trafficking and are trained and able to use legal powers to arrest and detain trafficking suspects. Wrongly identifying instances of human trafficking as illegal migration often results in the detention and deportation of trafficking victims. Quite aside from any violation of victims’ rights, once a victim is detained and deported the chances of securing a conviction are almost zero. The effectiveness of the frontline response to trafficking in persons will depend, in part, on the development and implementation of clear standard operating procedures for responding to trafficking cases. Established operating procedures will guarantee consistency in the knowledge, understanding and skills of frontline officers. Adequate training will ensure these officers have the capacity, appropriate to their roles and responsibilities, to react to the challenges of trafficking cases. Good and regular communication between frontline and specialist trafficking units is also a key feature of a good criminal justice response to trafficking. Frontline officials need to know to whom they should pass information they have on trafficking crimes. Frontline officers and the specialist trafficking unit must work closely and cooperatively to provide and receive the support and advice they need both to collect and manage trafficking intelligence and to take effective initial steps in responding to trafficking cases. |
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| Skilled national prosecutorial authorities and an informed judiciary are an essential element in an effective criminal justice response to trafficking in persons. Specifically, a high-functioning legal profession is critical to ensure that the work of law enforcement in trafficking cases is not wasted or compromised. For there to be an effective criminal justice response to trafficking in persons, judges and prosecutors must understand the trafficking phenomenon and have a basic knowledge of the applicable legal framework, including both obligations incurred through ratification of international treaties and relevant national laws. Emerging international practice confirms there is value in creating a centralised group of prosecutors with specialist knowledge of and experience in trafficking-related prosecutions. This kind of further specialisation within the legal profession will ensure an appropriate group of prosecutors and judges have advanced knowledge and understanding of trafficking dynamics, standard law enforcement response in trafficking investigations and victim psychology. It will also ensure an enhanced competency in using the applicable legal framework to secure convictions for trafficking-related crimes. Specialised prosecutors will be able to work closely together with specialised law enforcement units, streamlining communication and ensuring the results of investigations meet the evidential requirements of the trafficking laws. Equally, a team of committed and competent specialised prosecutors can ensure the work done by law enforcement is fully utilised. A group of specialised prosecutors will also provide a logical focal point for building working relationships across national borders thereby strengthening regional and international legal cooperation in trafficking cases. The testimony of the victim is often crucial to success in prosecuting trafficking cases. An additional challenge, then, in securing convictions in trafficking cases is overcoming some of the difficulties that arise when working with trafficking victims. Dealing effectively with victims can be very difficult for prosecutors unaccustomed to the types of emotional and psychological problems trafficking victims often exhibit, including trauma, fear and personal characteristics or vulnerabilities of the individual victim. Specialist prosecutors will have access to training, support, resources and experience they need to be able to manage the emotional and psychological trauma of trafficking victims and the effects this trauma can have on a victim’s willingness and ability to testify in court. It is important to remember that the goal of ending impunity for traffickers cannot be pursued at the expense of international rules governing the administration of justice. These rules guarantee the right to receive a fair and public hearing by a competent, independent and impartial tribunal established by law. The legal profession must understand and respect internationally established rules and act to protect the rights of all parties to trafficking-related cases, including accused persons. |
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| States have an obligation to actively and accurately identify victims of trafficking. Not only is correct and timely identification of trafficking victims essential to the provision of protection and assistance, inadequate or incorrect identification of victims leads to serious problems in the investigation and prosecution of traffickers. Despite this, there are universally low rates of victim identification in trafficking cases. Reasons cited for this include the covert nature of much trafficking activity, high levels of victim trauma and intimidation, and a distrust of law enforcement among victims. Accurate identification of trafficking victims is a complicated process and therefore requires active engagement on the part of the State. Front line law enforcement officers, and other relevant officials, need to be trained in standard operating procedures aimed at rapidly and correctly identifying victims. Guidelines should establish that where there is reason to believe someone has been trafficked, then that person should be treated as though they are a trafficked person until another determination is made. Granting ‘presumptive victim’ status to suspected trafficked persons ensure victims are immediately afforded the full range of protection and support rights to which they are entitled. The national legal framework should provide trafficked persons with enforceable rights of support and protection. A trafficked person should be entitled to the full spectrum of rights irrespective of their agreement to participate in any legal proceedings. Specific rights to which a trafficked person is entitled include: to have their immediate physical safety ensured; to be protected by the State from further harm; and to access emergency shelter, emergency medical care and legal advice. These specific rights fall under, of course, a general obligation of the criminal justice response to trafficking to acknowledge the trauma of the trafficking experience and the right of victims to be treated with humanity and dignity. In some countries, rather than being afforded rights of protection and support, trafficking victims are arrested and detained for criminal offences they may have committed. International policy now asserts that victims of trafficking should not be arrested or prosecuted for status-related offences. That is, there is a growing consensus, at the international level and amongst States that victims of trafficking should not be charged, arrested or detained for involvement in unlawful activities committed as a direct consequence of the fact of their having been trafficked, for example entering a country illegally, working illegally, holding false documentation or engaging in illegal activities. ‘Protective’ detention of victims of trafficking can also be problematic, and any detention of victims for their own protection needs to be carefully considered through a human rights framework.6 International law is clear that victims of trafficking have a right of access to effective remedies. States have an obligation to make remedies available under criminal or civil law to victims who wish to seek remedies, including restitution or compensation, for the exploitation they have suffered. Trafficked persons may have been forced to work for little or no payment over long periods of time, they may have suffered illness or injury that requires medical treatment or they may have incurred debts as a result of the trafficking experience. Not only should effective remedies be available under law, the State must provide victims with information and assistance to enable them to obtain the benefit of the remedy to which they are entitled. The special status of children, and child trafficking victims, is explicitly recognised under international law. While the general international principles outlined above apply equally to children and adults, the particular vulnerabilities of children require States to accord them special rights. Most importantly, when dealing with victims of trafficking who are children, the best interests of the child are to be at all times paramount. This overriding principle should be formally integrated into the State’s procedures and guidelines for dealing with child victims. Where there are grounds to suspect that a victim is under 18 years of age, that person is to be given the special protection measures to which children are entitled until such time as their age is formally verified. The detention of child victims should be strictly for their immediate protection and well-being and in full accordance with international rules and standards. |
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| All victims of trafficking are entitled to basic protection and support, regardless of whether or not they choose or are able to assist in criminal investigations or prosecutions. However, victims of trafficking often play a critical role as a witness because the victim is often the only witness who is in a position to give a full account of the crime, from the recruitment phase, through transportation and into exploitation. This is particularly so in poorly resourced criminal justice systems, where proactive investigations and intelligence gathering may be impossible. Ensuring that the legal framework, and criminal justice practices, fully supports the important role victims have to play as witnesses in trafficking cases is a fundamental aspect of improving the criminal justice response to trafficking. This is because the best way to encourage victims to cooperate with legal procedures is to treat them with respect and dignity and to rebuild their trust in the legal system. The national legal framework should fully support victims as witnesses. National laws should provide victims with a right to information about their legal rights and their role in relevant court proceedings. Victims will then be able to make informed decisions about whether they choose to participate in legal proceedings against their exploiters. Where a victim agrees to testify as a witness in a trafficking case, the national legal framework should protect the victim’s right to privacy and confidentiality. Support for the victim-witness must extend from the time the victim comes to the attention of the authorities, throughout the investigation, during the trial itself and then after the trial process has concluded. Ensuring support and protection continues for the duration of the victim’s involvement in legal proceedings is essential to encourage victims to cooperate in the legal process. As such, there must be genuine incentives for victims to cooperate in the proceedings, such as special visa arrangements, that are implemented in a way that does not compromise a victim’s credibility as a witness. At a minimum, victims involved in legal proceedings should not be repatriated against their will until legal proceedings are completed, including any proceedings in pursuance of their right to seek and obtain remedies. The trauma of the trafficking experience may make victims reluctant to give testimony in legal proceedings. National legal systems should recognise this and find ways for victims of trafficking to participate safely and meaningfully in court processes without suffering further trauma. For example, there could be legal provision allowing remote testimony or closed trials. In particular, the legal framework must make special provision for the treatment, care, support and protection of child victims who agree to cooperate as witnesses in trafficking trials. |
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| Trafficking crimes are usually transnational in nature. Victims, suspects and evidence are often located in two or more countries, necessitating effective cross-border cooperation in investigation and prosecution. There are two distinct, but interdependent, aspects to effective international cooperation: investigative and judicial cooperation. Trans-national investigative cooperation enables the prompt identification, location and rescue of victims and the identification and collection of evidence against suspects. Trans-national judicial cooperation facilitates the transfer of suspects and the evidence against them between States. In the context of an international crime such as trafficking in persons, offenders can operate with impunity where there are no means for reliable and efficient cross border cooperation. It is only by developing capacity in investigative and judicial cooperation that States can effectively combat trans-national trafficking. In particular, international cooperation ensures traffickers cannot escape prosecution and punishment by moving across international borders. Despite the evidence that such cooperation contributes substantially to breaking down criminal networks involved in transnational trafficking of persons, there are still very few genuine joint trafficking investigations between countries in South East Asia. Improving the sharing of information, the moving of evidence and the extradition of accused are essential to target high value suspects: the rich and powerful heads who run criminal enterprises involved in human trafficking.7 There is a range of essential practical legal tools for fighting transnational crime like trafficking in persons. Mutual legal assistance treaties must incorporate trafficking related crimes and national laws must allow the identification and transfer of relevant evidence between interested countries. The national legal framework must include specific extradition provisions for trafficking and trafficking-related crimes. Where a state is unable to extradite a suspect, the state must be active in exercising jurisdiction and undertaking criminal proceedings in accordance with the ‘extradite or prosecute’ principle referred to above. International cooperation is a complex and specialised area of the law and prosecutors and investigators involved in trafficking cases need training in order to understand the diplomatic and legal issues involved. Specialist trafficking units should be able to cooperate effectively and efficiently with their regional and international counterparts in criminal investigations. Central authority lawyers and specialised prosecutors must coordinate and communicate nationally and regionally to prioritise mutual legal assistance requests in trafficking cases. |
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| Creating and sustaining an effective criminal justice response to trafficking requires high and continuing levels of political support, resources and commitment. Given the complex and time consuming nature of trafficking prosecutions, even well resourced judicial systems cannot be expected to deal with large volumes of trafficking cases, particularly if the international safeguards for fair trial and the rights of the accused are to be fully respected. Outside assistance is vital for countries that lack the infrastructure, resources, skills and knowledge to maintain an effective criminal justice response to trafficking. This is an on-going challenge for all countries. Trafficking is a high-profile, security-sensitive issue, and as such, has attracted significant donor interest. Numerous organisations have developed and implemented important projects approaching the issue from a variety of perspectives, including in victim protection, research and analysis, prevention, legal reform, victim care and protection and prosecution of traffickers. While there have traditionally been very few organisations working on the criminal justice response to trafficking, there is a growing awareness of the critical importance of securing justice for victims and ending impunity for traffickers. As more donors actively support stronger and more effective national criminal justice systems, the risk of overlap and duplication becomes more apparent. The quality and impact of development assistance is inevitably compromised when donors fail to coordinate their efforts. While increased support for a criminal justice approach to trafficking in persons is positive, greater interest in this area must be carefully managed and coordinated to ensure resources are well spent and activities are not duplicated. International donors who support an enhanced criminal justice response to trafficking in persons must be alert to the need to ensure the broader capacity of national legal systems to seek justice and protect rights. |
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1. The US Department of State Trafficking in Persons Report, 2009, states that the number of TIP prosecutions worldwide in 2008 was 5,212. Retrieved 17 June 2009, from http://www.state.gov/g/tip/rls/tiprpt/2009/index.htm. Another recent effort at collecting, collating and analysing trafficking in persons data and trends, globally and as related to the criminal justice response to trafficking, is the United Nations Office on Drugs and Crime (UNODC) study documented in their Global Report on Trafficking in Persons (UNODC, 2009). This study also discusses why the number of convictions and prosecutions for trafficking in persons crime is so low.
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