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from the exploitation which is non-international, this approach has also been criticised for ultimately focusing only on border security, and even for trying to promote the legalisation of prostitution (from those who see traffi cking only as a sexual exploitation problem). Both approaches have pros and cons – it is true that the Protocol does not mention international borders, and that its “twin” the Smuggling Protocol does – it is also true that the Protocol cannot be taken out of context – the Convention. From a practical aspect both ways of looking at traffi cking may be legitimate – the important thing is not to include exploitation which does not contain all the elements in the defi nition as traffi cking and also to keep in mind that focusing on international trans-border traffi cking does not suggest that other forms of exploitation should not be addressed, nor that there are no international framework for doing so. UN agencies consider both internal and international traffi cking. 150 VICTIM CENTRED CRIMINAL LAW APPROACH When responding to human traffi cking within the criminal justice system, it is important to have the best interests of the traffi cked victim at the forefront of all activities. 151 A victimcentred criminal justice response to traffi cking is most effective in terms of achieving a successful prosecution of the traffi ckers and protecting and supporting the human rights of the traffi cked victim. Prioritising the well-being of the traffi cked victim and their recovery 150 UNODC considers internal traffi cking and is the UN Agency responsible for the UN TOC. See e.g. UNODC Toolkit to Prevent Traffi cking in Persons, 2008, p. 4. 151 The European Council Framework Decision of Mark 15, 2001 on the Standing of Victims in Criminal Proceedings defi nes a victim as: “A natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State.” The European Convention on Action Against Traffi cking in Human Beings, May 16, 2005, CETS No. 197, provides that: “Victim shall mean any natural person who is subject to traffi cking in human beings.” Following on from this reasoning, one possible defi nition of a ‘victim of traffi cking in persons’ is “a person who has suffered physical, mental or economic harm from the crime of traffi cking in persons, as defi ned by Article 3 of the Traffi cking Protocol.” This should be so irrespective of whether or not there is a strong suspicion against an alleged traffi cker or, or offi cial recognition of victim status; so as not to deny victims from receiving the full range of rights of assistance and protection available to them as victims. Where victim assistance and support measures to be withheld pending the verifi cation of a the perpetrator as a traffi cker or the victim as an offi cially recognized victim, further harm could result to them amounting to secondary victimization and ultimately leave them vulnerable again to being retraffi cked. Therefore, specifi cally on the basis of the defi nition of traffi cking in persons provided by Article 3 of the Protocol, a victim is anyone who is subjected to a combination of elements: acts, means and purpose established by Article 3(a) of the Protocol. However, where the person who has suffered harm is a child, they are to be considered as victims regardless of whether ‘means’ have been established. However, where a defi nition of a victim of traffi cking is linked to the offence, questions are raised as to the level of proof needed to ascertain that an offence has indeed been committed. See The Vienna Forum to fi ght Human Traffi cking 13-15 February 2008, Austria Center Vienna Background Paper 023 Workshop: The Effectiveness of Legal Frameworks and Anti-Traffi cking Legislation. 59
from a traffi cking ordeal is compatible with achieving the desired results in a criminal prosecution. This already testifi es to how the criminal law and human rights protection is closely linked. Furthermore the identifi cation 152 of a traffi cked victim is vital to ensure that they may be granted access to protection and support services. If a traffi cked victim is not identifi ed as such, he/she may be treated as an irregular immigrant if they are in the country irregularly, or he/she may be left without resources, protection or appropriate support in order to recover from the traffi cking ordeal. This is to the detriment of the traffi cked victim and to the traffi cking investigation. Without access to protection and support services, traffi cked victims may not recover to gain the suffi cient confi dence and security to cooperate with law enforcement offi cials in their criminal investigations. Without evidence and testimony from traffi cked victims, it is often diffi cult to prosecute the traffi ckers with full effect. 153 It will be discussed more in detail below how the strong link between prosecution – respect for the rule of the law – and human rights protection – the criminal law and human rights law aspects – may reinforce each other, but already the rather simple statement that it is detrimental not only to the traffi cked person but also to the investigation and prosecution if the rights of a traffi cked person is not one of the priorities, shows how the two branches of law are dependent one upon the other to obtain effective implementation. RELATED OFFENCES – INTERACTION BETWEEN THE TOC AND THE PROTOCOL The Convention and the Protocol must be interpreted together. In interpreting the various instruments, all relevant instruments should be considered and provisions using similar or parallel language should be given generally similar meaning. In interpreting a protocol, the purpose of that protocol must also be considered, which may modify meanings applied to the Convention in some cases. The provisions of the Convention apply to the Protocol, mutatis mutandis. This means that, in applying provisions of the Convention to the Protocol, minor modifi cations of interpretation or application can be made to take account of the circumstances that arise under the Protocol, but that modifi cations should not be made unless necessary, and then only to the extent necessary. This general rule does not apply where the drafters have specifi cally excluded it. Protocol offences shall also be regarded as offences established in accordance with the Convention. 152 Proper identifi cation of traffi cked victims can be broken down into four stages and can be applied to both adult and child victims of traffi cking. The four stages include; i) initial identifi cation to assess if one or more indicators of human traffi cking is present, ii) enquiries to corroborate these indicators, iii) further action which may include offering victims access to recovery and support services, evidential interviews or arrest and iv) active review of the action to establish that the indicators are corroborated further or to assess if further indicators of traffi cking are present. See UNGIFT: The Vienna Forum to fi ght Human Traffi cking 13-15 February 2008, Austria Center Vienna Background Paper. 006 Workshop: Criminal Justice Responses to Human Traffi cking. 153 UNGIFT: The Vienna Forum to fi ght Human Traffi cking 13-15 February 2008, Austria Center Vienna Background Paper. 006 Workshop: Criminal Justice Responses to Human Traffi cking. p. 3. 60
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United Nations Educational, Scienti
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UNESCO migration studies 3 Series e
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Human Rights Law 66 Development of
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Note on Author Kristina Touzenis ha
Page 9 and 10: countries with economies in transit
Page 11 and 12: nonetheless these instruments mark
Page 13 and 14: The legal aspect of traffi cking is
Page 15 and 16: enhanced knowledge of the phenomeno
Page 17 and 18: Broadly speaking, poverty, unemploy
Page 19 and 20: Considering the complexity of the p
Page 21 and 22: The perhaps most innovative report
Page 23 and 24: THE WAY FORWARD IN POSSIBLE RESEARC
Page 25 and 26: and considers the consent of the
Page 27 and 28: 35 Organizing or directing others t
Page 29 and 30: TRAFFICKING AND SMUGGLING - AN IMPO
Page 31 and 32: often be diffi cult for law enforce
Page 33 and 34: group argued that ’traffi cking
Page 35 and 36: ecruitments agency’s responsibili
Page 37 and 38: workers to authorities if they refu
Page 39 and 40: The Travaux Préparatories, in para
Page 41 and 42: Forced labour Bonded labour and deb
Page 43 and 44: ILO Declaration on Fundamental Prin
Page 45 and 46: and servitude clarifi es that while
Page 47 and 48: sex industry is frequently illegal
Page 49 and 50: idea that traffi cking for forced p
Page 51 and 52: labour exploitation and services ar
Page 53 and 54: Criminal Law Traffi cking and smugg
Page 55 and 56: treatment. 131 In A v. United Kingd
Page 57 and 58: circumstances, including offences i
Page 59: supply and demand in the traffi cki
Page 63 and 64: Common criminal off ences Traffi ck
Page 65 and 66: The gravity of traffi cking is perh
Page 67 and 68: Human Rights Law It has widely been
Page 69 and 70: makes the obvious evident - the Pro
Page 71 and 72: Members of the Human Rights Caucus,
Page 73 and 74: 3) examining the possibilities of g
Page 75 and 76: particular about their legal rights
Page 77 and 78: support person and interpreter, are
Page 79 and 80: Interaction with the TOC in witness
Page 81 and 82: and profi ts are hardly ever traced
Page 83 and 84: provisions made for the victims’
Page 85 and 86: occurs in the context of organized
Page 87 and 88: shall adopt appropriate legislative
Page 89 and 90: case is that the Court emphasised t
Page 91 and 92: OTHER RELEVANT HUMAN RIGHTS INSTRUM
Page 93 and 94: of the Child on the sale of childre
Page 95 and 96: PREVENTION - A HOLISTIC APPROACH Ad
Page 97 and 98: Studies have revealed how, througho
Page 99 and 100: Traffi cking in persons is - like a
Page 101 and 102: It thus results that any effective
Page 103 and 104: epresent confusion or disagreement.
Page 105 and 106: ealisation of the right to food. 28
Page 107 and 108: y state agents, (the duty on the St
Page 109 and 110: must also be sensitized to the para
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One of the three purposes of the Tr
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cases where it has been established
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victims compensation fund. Traffi c
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Protection and support for the traf
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their territories until the identif
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entry into or residence in countrie
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of human rights and may even in som
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Current policy for counteracting hu
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The contemporary regulation of huma
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of a residence permit and the right
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measures. The question of whether o
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availability of legal and sustainab
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ut nonetheless refl ects the kind o
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Current Trends in Traffi cking The
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There is still a lack of quantitati
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traffi cking are embedded in social
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further below). Most identifi ed hu
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In the construction sector: Exploit
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harms. At the same time, if one avo
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protection laws. Such differences b
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guards, labour inspectors, immigrat
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The fact that there are very few pr
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evidence to prove the crime and to
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Hence, migration departments and la
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The Recommended Principles and Guid
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traffi cking. Such cooperative mech
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prevention including respect for so
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To sign and ratify the Protocol to
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victims may be based on different f
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Fekete, L.: Canary Island Tragedy:
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Piotrowicz, R.: Trafficking of Huma
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UNODC: Global Patterns in Human Tra
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