Towards Non-Punishment and Anti-Trafficking Law Reform in Asia

by | Aug 4, 2021

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About Aakarsh Banyal and Ashwin Vardarajan

Aakarsh Banyal (University Merit Scholar) is an undergraduate law student at Symbiosis Law School, Pune, India. He has a keen interest in international law and previously served as an intern to Dr. Siobhán Mullally (UN Special Rapporteur on Trafficking in Persons). Ashwin Vardarajan is an undergraduate law student at Symbiosis Law School, Pune. His research interests include constitutional law, human rights law, and allied fields.

The non-punishment principle (‘NPP’) refers to protecting victims of trafficking from detention, prosecution, and conviction for crimes they commit as a consequence of being trafficked. In the recent case of V.C.L. and A.N. v. United Kingdom concerning the prosecution of two minors (a recognised trafficking victim and a potential trafficking victim) for their involvement in cannabis production in the UK, the Strasbourg Court’s decision lent credence to this principle. After affirming the State’s obligation to undertake measures to protect the victims under Article 4, ECHR, the Court found that the minors’ prosecution and subsequent conviction directly countermanded this obligation. The Court’s findings, inter alia, reveal a deleterious trend of state authorities initiating legal proceedings against trafficked individuals for forced criminality.

In Asia, the same trend persists as anti-trafficking laws of several states fail to recognise NPP. Whereas India altogether lacks a specific anti-trafficking law, Sri Lanka, Bhutan, Nepal, Singapore, and Cambodia’s laws associated with trafficking do not allude to NPP. Moreover, Pakistan’s anti-trafficking law narrowly protects victims for offences committed under the Act, leaving much room for prosecution under other laws. Similarly, Malaysia’s anti-trafficking law grants immunity to the victim from criminal prosecution in only three recognised instances – none of which relate to protection against criminal offences committed under force/coercion.

Additionally, the laws mentioned above diverge from UN Special Rapporteur’s recommendations to extend NPP protection to administrative and civil proceedings filed against trafficked persons to infuse anti-trafficking legislation with a ‘human rights approach’. It is worth mentioning in this regard that the latest iteration of India’s anti-trafficking bill, released for public consultation in July 2021, contains a provision concerning NPP; but it places a temporal hurdle in claiming this protection since an individual is designated ‘victim’ status only after charges have been successfully filed against the trafficker, which is often a prolonged process.

These legislative deficiencies deal a significant blow to victim protection and the region’s commitment to eradicating human trafficking. Furthermore, the continuation of this trend, despite the UN’s efforts in the form of UN High Commissioner for Human Rights’ recommendations in 2002 and the Working Group on Trafficking in Person’s recommendations in 2009 to implement the Palermo Protocol, is of notable concern since Asia accounts for the highest number of instances of trafficking. However, a glimmer of hope is found in the ASEAN Convention Against Trafficking In Persons – albeit recommendatory ­– and certain states’ incorporation of provisions that further NPP (see, Bangladesh, section 37(1); and Indonesia, article 18).

The need to implement the NPP is imminent for myriad reasons, which include the following:

  1. Initiation of legal proceedings against victims of trafficking countermands the states’ obligation to identify, protect and support, victims of trafficking – an obligation which also finds reference in varied forms in the above-mentioned laws.
  2. By prosecuting trafficked persons for offences they carried out at the behest of the trafficker, the state authorities end up diverting its resources and focus away from the actual perpetrator (i.e., the trafficker), who would  continue to run its trafficking operation with relative impunity.
  3. Lack of victim protection dissuades the trafficked persons from approaching the authorities, fearing the risk of prosecution and thus, impairs efforts to locate and expose trafficking rackets.
  4. The NPP endorses the mens rea canon since trafficked persons, especially children, are susceptible to committing various offences under inducement/duress.
  5. While discussing the expressive function of criminal law, James Goti noted that it “communicat[e] a dose of institutional solidarity with the victim.” NPP widens this approach by expressing the same kind of institutional solidarity with the victim in a newfound manner.

Domestic anti-trafficking legislation must incorporate the non-punishment principle to comply with prevailing human rights standards and afford maximal victim protection to all trafficked persons. For it is only after the implementation of such measures that the promise of human rights will be truly fulfilled.

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