'Victims of modern slavery are often miscategorised as criminals…': IBA legal projects director
A new report by the International Bar Association and the British Institute of International and Comparative Law examines human trafficking and the application of the non-punishment principle – a tenet that states ‘trafficked persons should not be subject to arrest, charge, detention, prosecution, or be penalised or otherwise punished for illegal conduct that they committed as a direct consequence of being trafficked.’
This report, Human trafficking and the rights of trafficked persons – an exploratory analysis on the application of the non-punishment principle, aims to provide guidance to better understand the structural, legal, and practical barriers to the implementation of the principle, and to contribute to the ongoing conversation among judges, lawyers, legislators and policymakers on the protection of trafficked persons and the application of the non-punishment principle.
The principle was established in 2002 by the Office of the United Nations High Commissioner for Human Rights.
This new report seeks to explore a number of interconnected questions, including:
- What are the sources of the non-punishment principle under international law and which states are bound?
- How is the principle of non-punishment defined in national legislation, if at all?
- How does it interact with other defences under national law?
- Is it only criminal punishment that is exempted or are other forms of ‘punishment’ also covered?
“Victims of modern slavery are often miscategorised, as criminals or wrong doers who need to face sanction,” said Sara Carnegie, director of IBA Legal Projects. “The situation is misunderstood and the offence is then punished without context, notwithstanding commitments agreed under International Conventions and soft law principles. This report hopes to provide helpful data and insights into what is being done and expose gaps and a need for awareness raising and better practice by lawyers, law enforcement and judges.”
Through a comparative analysis of relevant international documents, jurisprudence, and practices across Argentina, Australia, Canada, India, the U.K., and the U.S., contributors from several IBA committees, the IBA legal policy and research unit, and BIICL undertook research into the status of the non-punishment principle and its global interpretation and implementation. In addition, the project team drafted and distributed a global survey among IBA members and anti-trafficking stakeholders and coordinated six case studies.
The report indicates that there are barriers to the application of the non-punishment principle such as:
- A lack of awareness and training
- Systemic issues of identification or trafficked persons
- The presence of impeding procedural requirements and processes
- Thresholds and limitations placed on statutory protections
It also determined that a specific provision or guidance addressing trafficking victims is needed, which should be broader than the duress defence.
“The non-punishment principle is a fundamental cornerstone of an approach to counter-trafficking that meaningfully centres the protection of people with lived experiences of exploitation,” said Dr. Noemi Magugliani, research fellow in anti-trafficking law and policy at BIICL, lecturer in law at Kent Law School, University of Kent, and main author of the report. “This examination of non-punishment practices (or lack thereof) is an essential step to move towards understanding the gaps in law and policy, and also towards offering concrete models for states to fulfil their protection commitments.”
This report builds on the work of the IBA in combatting modern slavery – comprising a multifaceted initiative against forced labour, human trafficking,, and child labour that resulted in the reports A Child Rights Response to Child Migration and Human Trafficking and Public Corruption, as well as a short film titled ‘Supply Unchained’.
