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

The Traffi cking Protocol is a criminal law instrument that includes some human rights
provisions. It may be argued that some of these are weak – especially because of their
wording “shall consider” and “where appropriate” and that a lot are not included such as
compensation, witness protection, and other issues discussed above. All of this however
should not be taken as too big a disadvantage from a human rights perspective. Areas
not covered by the Protocol can be supplemented by international human rights law
and the applicable human rights norms and principles can be enforced through the
established mechanisms on the international and regional level. The Protocol can for
its part promote cooperation and play a role in bridging two fi eld of law and hopefully
making one reinforce the other.
Violations of human rights and international criminal law are inter-linked. 343 Traffi cking
falls under different branches of international law simultaneously. The existence of
overlapping between international human rights law, international criminal law and
trans-national criminal law does not mean that these branches are in confl ict with one
another, instead they are mutually reinforcing. 344 The main purpose of human rights law
is protection of the basic rights of the individual human beings; therefore obligations
are imposed not in relation to other states but towards all individuals within a states
jurisdiction. This means that international human rights law is not necessarily suited
to promote international cooperation and mutual assistance since these are examples
of obligations towards other states not individuals. This can be compensated by transnational
and international criminal law. On the other hand trans-national criminal law
has diffi culties in obtaining harmonisation of defi nitions and is not well equipped to deal
with defendants’ rights. These weaknesses may be compensated by international human
rights law. 345
A human rights analysis of traffi cking shows that the practice affects economic, social,
cultural as well as civil and political rights, and also that respect for all of these infl uence
traffi cking. It also highlights how protection and respect for witnesses/victims are
important not only from a human rights point of view but crucial for the criminal justice
angle too. It shows the weaknesses of human rights enforcement, but shows how a human
rights framework is necessary in all law enforcement to have an effective system and how
the two systems may reinforce each other.
The clear obligation of states to have a penal law system which protects individuals from
the criminal acts of other individuals – acts which if committed by the state would have
been clear violations of human rights – also demonstrates how interlinked the two systems
are. An effective implementation of criminal law may lead to more effective protection
343 Ibid. p. 133. See Cassese, A.: International Criminal Law (OUP, 2003), Merton, T.: Human Rights
and Humanitarian Norms as Customary International Law (Clarendon, 1989), Sunga, L.S.: Individual
Responsibility in International law for Serious Human Rights Violations (Martin Nijhoff, 1992), Ratner,
S.R. and Abrams, J.A.: Accountability for Human Rights Atrocities in International Law: Beyond the
Nuremberg Legacy (OUP, 2001).
344 Ibid. p. 166.
345 Ibid. p. 169.
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