The development of the Recommended Principles and Guidelines on Human Rights and Human Trafficking (the Guidelines) was headed by the United Nations High Commissioner for Human Rights, Mary Robinson420 in lieu of the fact that human trafficking had “moved from the margins
to the mainstream of international concern”421 and in order to “provide practical, rights-based
policy guidance on the prevention of trafficking and the protection of victims of trafficking”.422 The Guidelines were developed by means of a “wide-ranging, informal consultation process involving individual experts and practitioners as well as representatives of the United Nations agencies and programmes and other intergovernmental organisations working on trafficking related issues.”423 The Guidelines were transmitted to the UN Economic and Social Council in 2002 and have been integrated into various legal policies and texts and also serve as annexes to regional and international treaties which include the Palermo Protocol.424 The Guidelines aim to “promote and facilitate the integration of human rights perspectives into national, regional and international anti-trafficking laws, policies and interventions.” In her foreword to the Guidelines, the former High Commissioner urges member states and intergovernmental organisations to make use of these Guidelines in their own pursuit against trafficking and the protection of the rights of trafficking victims.425 The document consists of 11 guidelines, supplementing the existing gaps in the Organized Crime Convention and the Palermo Protocol and making it an important source for domestic policymaking. The Guidelines establish a framework for corporate responsibility with
420 UN OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking Commentary (2010) 3.
421 UN OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking Commentary (2010) 3.
422 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline foreword by High Commissioner for Human Rights Mary Robinson.
423 Recommended Principles and Guidelines on Human Rights and Human Trafficking Commentary (2010) 15. 424 Recommended Principles and Guidelines on Human Rights and Human Trafficking Commentary (2010) 15. 425 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline foreword by High Commissioner for Human Rights Mary Robinson.
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regards to human rights and suggests human rights due diligence as an optional mechanism for businesses to respect human rights.
Guideline 1 deals with the obligation of states to promote and protect human rights by ensuring that measures are adopted for the purpose of preventing and combating human trafficking in persons.426 Such measures include consulting with judicial and legislative bodies, national human rights institutions and civil society role-players to assist states with the adoption, implementation and review of anti- trafficking legislation, policies and programmes.427 It also discusses the development of national plans of action to combat trafficking, declaring that this process should take place via the construction of partnerships between governmental institutions with the intention to not only build links but also to assist trafficking victims and to combat trafficking more effectively.428 This Guideline also makes mention of mechanisms to be established in order to monitor the impact of anti-trafficking legislation on the human rights of victims.429
Guideline 2 focusses on the identification of trafficked persons and traffickers, pointing out that— “[t]rafficking means much more than the organized movement of persons for profit. The critical additional factor that distinguishes trafficking from migrant smuggling is the presence of force, coercion and / or deception throughout or at some stage in the process – such deception, force or coercion being used for the purpose of exploitation.” 430
This Guideline very importantly states that the failure to effectively identify a trafficking victim is “likely to result in a further denial of that person’s rights” and that states are obliged to ensure effective victim identification.431 Guideline 2 further discusses due diligence, stating that states are “obliged to exercise due diligence in identifying traffickers, including those who are involved in controlling and exploiting trafficked persons.”432 Guidelines and procedures must be developed in order for authorities to more effectively detect human trafficking.433 The training of these relevant authorities is paramount in combatting human trafficking as it will improve victim
426 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 1 at para 1. 427 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 1 at para 2. 428 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 1 at para 3. 429 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 1 para 7. 430 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 2. 431 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 2. 432 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 2.
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identification.434 Measures must also be implemented to ensure that migrants and potential
migrants are made aware of the potential dangers and consequences of trafficking.435
Guideline 3 deals with the research, analysis, evaluation and dissemination of trafficking cases, stating that the media plays a very important role in creating public awareness of human trafficking and potential recruitment methods.436 Guideline 4 discusses the importance of ensuring an adequate legal framework, adding that “[t]he lack of specific and/or adequate legislation on trafficking at the national level has been identified as one of the major obstacles in the fight against trafficking. There is an urgent need to harmonise legal definitions, procedures and cooperation at the national and regional levels in accordance with international standards.”437 Legislative provision must be made for “effective and proportional criminal penalties” and additional penalties should be applied to trafficking offences with aggravated circumstances such as trafficking in children and offences “committed by or involving complicity by State officials”.438 Guideline 4
also discusses the confiscation of the instruments and proceeds of trafficking, stating that such proceeds must be used to benefit trafficking victims.439 Guideline 4 also advocates for the establishment of a compensation fund for trafficking victims, utilising the confiscated assets to finance the fund.440 Other points raised are the protection of victims by summary deportation,441 the provision of legal information442 and the right to assistance in a language a victim
understands443 as well as social support to meet the immediate needs of trafficking victims.444 The
rights of victims to initiate civil claims against their traffickers must also be “enshrined in law” according to this guideline.445
Guideline 5 makes provision for an adequate law enforcement response in order to impact more effectively on the combating of trafficking.446 As the cooperation of trafficking victims play an
434 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 2 at para 2. 435 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 2 at para 4. 436 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 3.
437 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 4. 438 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 4 para 3. 439 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 4 at para 4. 440 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 4 at para 4. 441 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 4 at para 6. 442 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 4 at para 8. 443 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 4 at para 8. 444 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 4 at para 8. 445 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 4 at para 9. 446 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 5.
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evident role in the response to human trafficking, individuals are often unable to report traffickers due to the absence of effective protection mechanisms.447 The involvement of officials in
trafficking is a factor contributing to the reluctance of victims to report.448 Investigators should be made aware of their responsibility to ensure the safety of a trafficking victim by means of effective training measures.449 They should be made aware of the special needs of victims, especially women and children and also be well-informed about the possibilities surrounding the incentivising of victims who decide to come forward:450
“Sensitizing police, prosecutors, border, immigration and judicial authorities, and social and public health workers to the problem of trafficking and ensuring the provision of specialized training in identifying trafficking cases, combatting trafficking and protecting the rights of victims.”451
Guideline 6 discusses the protection of and support for trafficked persons, stating that “[t]he trafficking cycle cannot be broken without attention to the rights and needs of those who have been trafficked. Appropriate protection and support should be extended to all trafficked persons without discrimination.”452 It goes further by stating that the immediate and social needs of victims must be met via partnerships between the state and non-governmental organisations and victims should receive access to safe shelter, primary healthcare, counselling, and assistance in voluntary return to their countries, if and when possible.453 It furthermore adds that “the provision of such shelter should not be made contingent on the willingness of the victims to give evidence in criminal proceedings.”454
Guideline 7 discusses prevention strategies aimed at preventing trafficking and urges that prevention measures implemented by states should take into account demand as a root cause.455 The Guideline further states that—
“[s]tates and intergovernmental organisations should also take into account the factors that increase vulnerability to trafficking, including inequality, poverty and all forms of discrimination and
447 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 5. 448 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 5.
449 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 5 at para 2. 450 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 5 at para 2. 451 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 5 at para 7. 452 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 6.
453 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 6 at para 1. 454 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 6 at para 1. 455 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 7.
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prejudice. Effective prevention strategies should be based on existing experience and accurate information.”456
Guideline 8 takes a look at special measures for the protection and support of child victims, stating that
“[t]he particular physical, psychological and psychosocial harm suffered by trafficked children and their increased vulnerability to exploitation require that they be dealt with separately from adult trafficked persons in terms of laws, policies, programmes and interventions.”457
Guideline 9 covers access to remedies by trafficking victims and states that all victims have an international right to “adequate and appropriate remedies”.458 As trafficking victims are often isolated
from the outside world, they are unaware of these remedies, and need to be informed of the “availability of obtaining remedies, including compensation, for trafficking and related exploitation”.459 States, intergovernmental and non-governmental organisations should inform victims of their enforceable right to “fair and adequate remedies” of a criminal, civil and administrative nature.460 The relevant
organisations should also provide information to victims with the regards to the procedures to be followed in order to obtain remedies.461
Guideline 10 deals with the obligations of peacekeepers, civilian police and humanitarian and diplomatic personnel, stating that:
“[t]he direct or indirect involvement of peacekeeping, peace-building, civilian policing, humanitarian and diplomatic personnel in trafficking raises special concerns. States, intergovernmental and non-governmental organisations are responsible for the actions of those working under their authority and are therefore under an obligation to take effective measures to prevent their nationals and employees from engaging in trafficking and related exploitation.”462
States must also ensure the thorough investigation of all trafficking allegations and related exploitation and appropriate sanctions must be applied to personnel found to have been involved in trafficking. The last Guideline, Guideline 11, very importantly, focusses on the cooperation between states and regions in the fight against trafficking, stating that the cooperation between states is paramount in the
456 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 7. 457 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 8. 458 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 9. 459 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 9.
460 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 9 at para 1. 461 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 9 at para 2. 462 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 10.
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successful combatting of trafficking. Guideline 11 also states that a strengthened national response often results in traffickers moving to other jurisdictions and that “cooperation is particularly critical between countries involved in different stages of the trafficking cycle.”
The Guideline suggests that labour migration agreements are adopted by countries with the potential inclusion of minimum work standards, model contracts and modes of repatriation in accordance with existing international standards. The Guideline also encourages states to enforce all such labour migration agreements in the global fight against trafficking and related exploitation. The development of cooperation arrangements is also of paramount importance in order to ensure the “rapid identification of trafficked persons including the sharing and exchange of information in relation to their nationality and right of residence.”463 Other valuable suggestions include the implementation of mechanisms464 facilitating the exchange of information concerning traffickers465 and their methods of operations as well as the development of procedures and protocols for the conduct of proactive joint investigations by law enforcement authorities of different concerned states.466 Judicial cooperation between states is a highly valuable suggestion and would mean that common prosecution methodologies could be used in joint investigations and judicial processes relating to trafficking and related offences. 467
International cooperation with regards to the confiscation of trafficking proceeds is also suggested by Guideline 11 and states that such “cooperation should include the provision of assistance in identifying, tracing, freezing and confiscating assets connected to trafficking and related exploitation.”
Other suggestions include the exchange of information,468 experience relating to the implementation of
assistance and return and integration programmes with a view to maximizing impact and effectiveness. Cooperation between Non-Governmental Organisations and other civil society organisations in countries of origin, transit and destination should also be encouraged since it could ensure support and assistance to trafficked persons who are repatriated.469
463 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 11 at para 5. 464 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 11 at para 6. 465 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 11 at para 5. 466 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 11 at para 7. 467 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 11 at para 8. 468 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 11 at para 11. 469 Recommended Principles and Guidelines on Human Rights and Human Trafficking Guideline 11 at para 12.
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