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

consider temporary or permanent residency in countries of transit or
destination (refl ection delay) for traffi cking victims in exchange for
testimony against alleged traffi ckers, or on humanitarian and compassionate
grounds;
ensure that victims of traffi cking are offered the possibility of obtaining
compensation for damages suffered; provide for proportional criminal
penalties to be applied to persons found guilty of traffi cking, including
offences involving traffi cking in children or offences committed or
involving complicity by State offi cials; and proceeds of traffi cking, and
related offences, to be used for the benefi t of traffi cked persons.
UNESCO: Human Traffi cking in Mozambique: Root Causes and Recommendations.
Policy Paper Poverty Series, n° 14.1 (E). Paris 2006, p. 56
Having defi nitions in place and knowing how to operate with them is not only an
academic exercise – it is crucial in order to fi ght the abuse and exploitation which takes
place on a daily basis. It is also crucial to understand those defi nitions in view of changes
in traffi cking patterns. Traffi ckers adapt their practices as other criminals in order to
avoid prosecution. That is one reason why legal defi nitions always must be suffi ciently
precise but at the same time not too rigid, in order to avoid creating the need for new
laws to address new criminal practices. The defi nition of traffi cking does not fail on this
point. And knowing the defi nition will also help avoid mistakes such as prosecuting
only when traffi cking coincides with a slavery situation and not with a forced labour
situation according to ILO defi nitions, where the victim is e.g. paid but not free to move.
Misunderstandings and misrepresentations of what traffi cking is can easily lead to the
consideration that the Protocol fails to address such “new” forms of traffi cking when this
is not at all the case.
Knowing that the Protocol is a criminal law tool, addressing a crime with a human rights
component, knowing that prosecution depends on the criminal law aspect and notion
such as intent, and that the Protocol operates within a broader framework of international
instruments, including human rights instruments and labour law instruments, and that
a State has an obligation to protect against violence and prosecute perpetrators all help
in the fi ght against abuse, exploitation and traffi cking. Quite clearly the human rights
approach is absolutely necessary in order to protect traffi cked persons. Especially to make
certain that they are treated suitably and not only as irregular non-nationals. A human
rights approach is necessary to deal with all kinds of exploitation. Just as a criminal law
approach ensures effective respect for the Rule of Law, which in turn is a guarantee for
human right protection. Addressing “traffi cking” means addressing migration – having
dignifi ed and regular migration channels, promoting fair work and fair pay, and cutting
the livelihoods of organised crime, and obviously protecting those who fall victims of the
crime. To ensure this a wide variety of remedies exist – in criminal law, in human rights
law, in labour and social welfare law. These overlap, combine and sometimes clash. These
remedies must be considered complimentary and cumulative and the compensation of
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