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A new report has been published by the International Bar Association (IBA) and the British Institute of International and Comparative Law (BIICL) on 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.’ The principle was established in 2002 by the Office of the United Nations High Commissioner for Human Rights.

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 stated: ‘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. Yet, the principle is not enshrined, let alone implemented, systematically around the globe, failing to adequately protect trafficked persons from unfair punishment. 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.’

According to the principle of non-punishment, it is not appropriate to criminalise or punish individuals who are trafficked and involved in illegal activities that stem from their exploitation. This includes specific forms of exploitation like prostitution, drug cultivation and illegal work, as well as incidental forms of exploitation like immigration, administrative or civil offenses. The idea of not punishing trafficked individuals is becoming more widely accepted as a fundamental element of a rights-based strategy for their protection. Nonetheless, the evidence that is currently available indicates that the application of the principle is varied and inconsistent.

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?

Key findings include:

• significant discrepancies among the thresholds contained in international instruments for the application of the principle. Generally, hard law instruments understand non-punishment and apply a compulsion criterion (similar to the criterion of a defence of duress), whereas soft law instruments apply a direct consequence (or causation) threshold;
• variation in how the case study countries identify individuals as trafficked and who the burden of proof falls on, as well as a large divergence on whether the non-punishment principle can apply ex post – meaning whether (an unfair) conviction can be later vacated and/or records expunged; 
•  barriers to the application of the non-punishment principle such as: lack of awareness and training, systemic issues of identification of trafficked persons, the presence of impeding procedural requirements and processes and the thresholds and limitations placed on statutory protections;
•  a specific provision or guidance addressing trafficking victims is needed, which should be broader than the duress defence.

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’. 
ENDS

Notes to the Editor

1. Click here to download a copy of the report Human trafficking and the rights of trafficked persons – an exploratory analysis on the application of the non-punishment principle 
2. The British Institute of International and Comparative Law (BIICL) is one of the leading independent research centres for international and comparative law in the world. Our high quality research projects, seminars and publications encompass almost all areas of public and private international law, comparative law and European law, and we are at the forefront of discussions on the many contemporary issues of international and comparative law. BIICL includes within it the innovative Bingham Centre for the Rule of Law, which has a particular focus on the many rule of law issues world-wide.
3. The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, with the aim of protecting and promoting the rule of law globally, the IBA was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice. The IBA acts as a connector, enabler, and influencer, for the administration of justice, fair practice, and accountability worldwide. The IBA has collaborated on a broad range of ground-breaking, international projects with the United Nations, the European Parliament, the Council of Europe, The Commonwealth, the Organisation for Economic Co-operation and Development (OECD), the World Trade Organization, the International Monetary Fund and the World Bank, among others.
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