Trafficking in human beings: human rights and ... - unesdoc - Unesco

cases where it has been established that killing was caused by an agent of the State. 316 This
obligation has been endorsed by other human rights mechanisms including the Human
Rights Committee 317 and the Special Rapporteur on Violence against Women. 318 The
fi rst step which must be taken to fulfi l this obligation is to establish jurisdiction over
traffi cking and smuggling. 319 The concept of the State’s due diligence responsibility for
private actors has been popularly used to promote the rights of traffi cked victims who
have had their rights violated by private actors acting in direct defi ance of State laws or
policies. 320 In fulfi lling its duty to ‘ensure’ respect of such rights, the State has a legal duty
to take reasonable steps to prevent human rights violations and to use the means at its
disposal to carry out a serious investigation of violations committed within its jurisdiction,
to identify those responsible, to impose the appropriate punishment and to ensure the
victim adequate compensation. 321 The Velásquez ‘due diligence’ duty, while invaluable in
holding the State responsible for the acts of private actors, does not adequately protect
traffi cked victims for several reasons. While the Velásquez judgment articulates three
separate duties, of prevention, punishment, and victim compensation, its formulation of
the State’s duty to compensate victims is phrased in less obligatory terms than the fi rst two
duties. The Court held that ‘States must prevent, investigate and punish any violation…
and moreover, if possible, attempt to restore the right violated and provide compensation
as warranted for damages resulting from the violation.’ 322
The obligation to investigate, prosecute and punish offenders has also been endorsed
by other human rights mechanisms including the Human Rights Committee, 323 and
the Special Rapporteur on Violence against Women. The criminal justice response to
traffi cking which dominates at the national level is a necessary component of a human
rights framework, prohibition of the practice coupled with punishment can deter
traffi ckers from abusing human rights of victims. A criminal law response must then be
facilitated in accordance with international human rights law, making certain that law
enforcement does not in itself violate human rights. 324
316 Obokata, T.: Traffi cking and Smuggling of Refugees from a Human Rights Perspective. p. 9 Ergi v.
Turkey (App. 23818/94), Judgment of 28/7/98, para. 82. See also Osman v. United Kingdom, (App.
23452/94), Judgment of 28/10/1998, paras. 115-116; and Z and Others v. United Kingdom (App.
29392/95), Judgment of 10/5/01, para. 109.
317 General Comment No. 7 (Torture, Inhuman or Degrading Treatment and Punishment)(1982),
Compilation of General Comments, supra, paras. 1 and 2; and Herrera Rubio v. Colombia,
Communication No. 161/1983, CCPR/C/31/D/161/1983, para. 11.
318 See above, Report of the Special Rapporteur on Violence against Women Its Causes and Consequences, E/
CN.4/2000/68, paras. 51-53.
319 Obokata, T.: Traffi cking and Smuggling of Refugees from a Human Rights Perspective. p. 10
320 Wuiling, C: Assessing Criminal Justice and Human Rights Models in the Fight against Sex Traffi cking: A
Case Study of the ASEAN Region. Essex Human Rights Review Vol. 3 No. 1. p. 49.
321 Velásquez, n. 12 above, para. 174.
322 Wuiling, C: Assessing Criminal Justice and Human Rights Models in the Fight against Sex Traffi cking: A
Case Study of the ASEAN Region. p. 49.
323 General Comment No. 7 (Torture, Inhuman or Degrading Treatment and Punishment) 1982. And
Herrera v. Columbia, Communication No 161/1983, CCPR/C/31/D/161/1983, para. 11.
324 Obokata, T.: Traffi cking of Human Beings from a Human Rights Perspective – towards a holistic approach.
p. 151. This includes right related to detention, due process and fair trial (Art. 14 of the ICCPR and
112