Promotion of new legislation and regulations, and implementation of international instruments, and national legislation and regulations;
Co-operation with relevant actors, including governments, civil society organisations, the private sector, international organisations, UN agencies, treaty bodies, and other mandate-holders;
Identifying and sharing good practices;
Issuing recommendations on practical solutions to various challenges of anti-trafficking action, especially related to the protection of victims’ rights;
Monitoring and reporting, both from a thematic and country-based point of view;
Dealing with individual cases of particular gravity.
Means to ensure effectiveness
In parallel with the Special Rapporteur’s tasks and obligations, other actors have duties of co-operation under Human Rights Council Resolution 26/8 of 2014. First, governments have a duty to co-operate fully with the Rapporteur, and to respond favourably to his/her requests to visit their countries, to provide him or her with all necessary information related to the mandate, and to react promptly to urgent appeals in order to enable him or her to fulfil the mandate effectively.
The Resolution strongly encourages governments to refer to the OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking; urges States, sub-regional, regional, and multilateral organisations to develop and strengthen strategies and plans of action to combat trafficking in persons in accordance with a victim-centred approach; and invites States and other interested parties to contribute to the UN Voluntary Trust Fund on Contemporary Forms of Slavery and the UN Voluntary Trust Fund for Victims of Trafficking in Persons, especially Women and Children.
Importantly, the Resolution requests the United Nations High Commissioner for Human Rights to ensure that the Special Rapporteur receives the resources necessary to enable him/her to discharge his or her mandate fully. Unfortunately, however, human and financial resources available to the Special Rapporteur are chronically insufficient to enable the fulfilment of the mandate in an optimal way. Moreover, the Special Rapporteur, as an independent expert, receives no salary, and is therefore obliged to discharge the mandate in addition to her/his own job; therefore, she/he can only devote a limited time to the mandate, usually the equivalent of four months a year.
Country visits
According to Article 11 of the Code of Conduct, country visits are carried out “with the consent, or at the invitation, of the State concerned”. The visit is prepared in close collaboration with the Permanent Mission of the State, and the official programme is finalised directly with host country officials and logistical back-up from the local UN Agency and/or Representative of the OHCHR. Mandate-holders are entitled to official security protection during their visit, without prejudice to the privacy and confidentiality required to fulfil their mandate. This implies that a certain degree of co-operation from the State concerned is always needed to carry out a country visit. However, it is important to stress that, in order to guarantee full independence of mandate-holders, country visits are totally funded by OHCHR.
A visit can be planned upon the initiative of a State addressing a mandate-holder with an invitation. However, a mandate-holder can also solicit an invitation and explore the willingness of a country to receive a visit if this is of particular importance for the mandate. Some countries have issued standing invitations, which means that they are ready to receive a visit from any thematic mandate-holders.
Country visits are an essential means to obtain direct and first-hand information on human rights violations. They allow for intensive dialogue with all relevant State authorities, including those in the executive, legislative, and judicial branches. They also allow for contact with, and information gathering from, victims, relatives of victims, witnesses, national human rights institutions, international and local NGOs and other members of civil society, the academic community, and officials of international agencies.10 A country visit is also an opportunity for awareness-raising in the country concerned. At the end of the visit, Special Rapporteurs on trafficking have always held a press conference during which they have shared their preliminary findings and recommendations.
A mission report is prepared after every country visit. A draft report is first submitted to the government concerned. A period – usually of six weeks, but not less than four weeks – is allowed for the government’s comments to be taken into account. Comments by the government concerned on the substance of the report should be annexed to the report. They may, upon request of the government concerned, also be issued as an official document.11
The report contains recommendations to governments and intergovernmental and nongovernmental organisations. Recommendations should be ‘SMART’: specific, measurable, attainable, realistic, and time-bound. This implies that not all issues arising during a visit should be addressed through recommendations, and that mandate-holders should give priority to those suggestions which meet the SMART criteria.12 This could, however, sometimes be problematic. In fact, for the Special Rapporteur on trafficking, given the wide range of issues involved in their anti-trafficking mission, and with a view to issuing workable recommendations complying with the SMART criteria, it is always a challenge to strike a balance between the need to maintain a certain uniformity of assessment patterns among States concerned, and the opposite need to adopt a special focus in relation to issues specific to the visited country.
During the existence of the mandate, since 2004, the three Special Rapporteurs subsequently holding the mandate have carried out 24 country visits: to Bosnia-Herzegovina, Lebanon, Bah-rain, Oman, Qatar, Belarus, Poland, Japan, Egypt, Uruguay, Argentina, Thailand, Australia, the United Arab Emirates, Gabon, the Philippines, Morocco, Italy, the Bahamas, Belize, the Seychelles, Malaysia, Jordan, and Kuwait. Further country visits to the USA and Brazil are scheduled at the time of writing.
Given the limited number of country visits that a Special Rapporteur can carry out every year – usually two or three – it is clear that an evaluation on a global level is not the aim of such an activity. It is even less plausible – and not included in the methods of work of UN Special Procedures, anyway – to compare countries or assign a score to them. The added value of country visits is rather linked with the opportunity to engage with State and non-state actors in an interactive dialogue, aimed at identifying achievements, gaps, and challenges in every country, and in contributing to the advancement of anti-trafficking legislation, policy, and actions through recommendations.
The main challenge for the Special Rapporteur is often linked with the need to reorient anti-trafficking action according to a genuinely human rights-based approach. Moreover, during my tenure I have stressed the importance of assessing policy coherence on a regular basis: not only anti-trafficking policy, but also related policy areas, such as migration and the labour market, must be assessed in order to evaluate their consistency with the aim of preventing and combating trafficking in persons from a human rights-based approach. This is particularly problematic especially regarding migration policy, which is, in many countries, highly contentious and politicised.
A sensitive aspect of country visits is the relationships with civil society organisations. It is current practice of the Special Rapporteur that a meeting with civil society is organised on the occasion of every country visit, preferably at the beginning of the work programme. This meeting gives the Special Rapporteur an opportunity to receive information from people working in the field, and to take into account the views of civil society organisations on the main issues to be dealt with during the visit. It is the usual practice of the Special Rapporteur on trafficking that this meeting is organised by OHCHR, eventually with the collaboration of UN Agencies present in the country, without any information sharing with the government of the State concerned. This implies that the Special Rapporteur selects the organisations to be invited and does not share the list of such organisations with the government of the Sta
te concerned. The meeting takes place in a confidential setting, without the presence of government officials.
Communications and other activities
According to the Code of Conduct, when mandate-holders receive information concerning allegations of human rights violations they send a communication to the State concerned, and occasionally to non-state actors, asking for clarification and action. In carrying out such an activity, mandate-holders must assess, inter alia, that the communication is “not manifestly unfounded or politically motivated” and that it is
submitted by a person or group of persons claiming to be victims of violations or by any person or group of persons, including [NGOs], acting in good faith in accordance with principles of human rights, and free from politically motivated stands or contrary to, the provisions of the [UN Charter], and claiming to have direct or reliable knowledge of those violations substantiated by clear information.
Moreover, “the communication should not be exclusively based on reports disseminated by mass media”.13
The language of this provision shows a certain fatigue in reaching a balance between the interest of concerned States and the need to take into account communications coming from civil society, which are normally the source of such information. It is, in fact, particularly difficult to assess on a case-by-case basis when a NGO is – or is not –“free from politically motivated stands”.
From 2006 to 2016, 74 communications were sent by the Special Rapporteur on trafficking, and 43 State responses were received. During my tenure, from August 2014 to date, 11 communications have been sent, with seven responses received.
In addition to communications, mandate-holders can address governments with urgent appeals
in cases where the alleged violations are time-sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of a very grave nature to victims that cannot be addressed in a timely manner by the procedure [of letters of allegation].14
At the request of the Human Rights Council, Special Rapporteurs and other mandate-holders prepare thematic studies; develop human rights standards and guidelines; participate in expert consultations, seminars, and conferences; organise panels during sessions of the Human Rights Council; organise working visits, i.e., in-country missions that are not fact-finding but a mix of technical assistance, mediation, and the development of best practices; and raise awareness about specific human rights situations and phenomena attesting threats to human rights, through public statements and interaction with a wide variety of partners.
Thematic reports
The Special Rapporteur can contribute to the overall body of knowledge in the field, and to the understanding of complex problems and their possible solutions. As per current practice, the Special Rapporteur on trafficking submits thematic reports on a regular basis, both to the Human Rights Council and to the General Assembly. Among the thematic reports submitted by the first two Special Rapporteurs, some have contributed to highlighting new areas and opening new paths for action: in 2013, Trafficking in persons for the removal of organs;15 in 2012, Integrating a human rights based approach in measures to discourage the demand that fosters all forms of exploitation of persons, especially women and children, and which leads to human trafficking16 and Human trafficking in supply chains;17 in 2011, The right to an effective remedy for trafficked persons, which also includes a set of basic principles on the rights to effective remedies for trafficked persons, developed following extensive regional consultations;18 and in 2007 and 2014, Forced marriage in the context of trafficking in persons.19
During my tenure, in 2015 I submitted to the General Assembly a thematic report on Due diligence and trafficking in persons.20 In my thematic reports to the Human Rights Council and the General Assembly in 2016, the link was examined between trafficking in persons and conflicts as serious vulnerability factors affecting large movements of people, including asylum seekers and refugees and, in general terms, people fleeing wars, conflicts, and terrorism. An expert consultation on the subject took place in Amman in November 2015; extensive research and dialogue with practitioners and States, including at the UN Security Council, formed the basis of the subsequent report. A country visit to Jordan, including visits to refugee camps, administrative detention centres, and shelters for trafficked persons, was carried out in 2016. I will report on the link between trafficking and conflict in 2016.
Conclusions and the way forward
It has to be acknowledged that responses to trafficking have not always been grounded in the firm foundation provided by human rights. The Special Rapporteurs who have subsequently been mandate-holders in the field of trafficking in persons have consistently maintained that prioritising other concerns such as crime prevention and migration control over human rights distorts the nature of the problem and obscures the most important and effective solutions.21 Therefore, the main challenge for the Special Rapporteur is to promote a human rights-based approach in every action aimed at dealing with trafficking, in any of the areas traditionally identified as the main fields of anti-trafficking action: prevention, protection, and prosecution.
This task presents difficulties which are not at all obvious and, on the contrary, require continuous insistence on some basic indications contained in the OHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking, which are not – or not correctly – implemented. A few examples will further highlight issues not properly addressed, and therefore suggest the need for a shift in anti-trafficking action.
Prevention of trafficking should include the establishment of regular channels for migration, including gainful and non-exploitative labour migration. Full and correct implementation of asylum regulations and the principle of non-refoulement should be ensured also with a view to preventing trafficking.
In the field of trafficking for labour exploitation, the private sector should be involved in preventative actions in order to ensure effective implementation of self-regulatory mechanisms aimed at preventing trafficking and exploitation from happening in their supply chains. On the other hand, States should develop legislation, action plans, and other mechanisms to establish basic obligations or otherwise encourage the private sector to take action in this field.
Protection should not be made conditional – as happens in many States – upon the capacity or willingness of the trafficked persons to co-operate in criminal proceedings. The principle of unconditional assistance should be further explored and possibly expanded. From a human rights-based approach, it is not acceptable that victim protection be made conditional on not only co-operation, but also the existence of criminal proceedings, and the legal qualification of such proceedings as a trafficking case. An innovative system of protection and support for exploited and trafficked persons, led by civil authorities, should therefore be designed.
Victims’ rights must be protected at all times, including in the course of criminal proceedings; such proceedings should not only focus on the punishment of the perpetrators, but also aim at avoiding further suffering and trauma to victims, and ensure their right to an effective remedy.
Finally, in order to reorient anti-trafficking action in a genuinely human rights-based manner, it is essential to understand that a broader area of exploitation must be addressed, as the protection of the rights of all vulnerable persons, including migrants, is key to preventing trafficking and exploitation, and to detecting trafficking situations.
The vast majority of these indications require profound changes, which are not limited to the specific area of anti-trafficking measures. This is the current challenge for the trafficking mandate.
Notes
1 According to the Manual of Operations of the Special Procedures of the Human Rights Council, the term ‘Special Procedures’ has been developed to describe a diverse range of procedures established to promote and to protect human rights and to prevent violations in relation to specific themes or issues, or to examine the situation
in specific countries.
2 www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx.
3 Adopted without a vote in the 9th meeting of the Human Rights Council on 18 June 2007.
4 ST/GB/2002/9.
5 Article 3(c) of the Code of Conduct, foreseeing that Mandate-holders must also comply with the Regulations Governing the Status, Basic Rights and Duties of Officials other than the Secretariat Officials, and Experts on Mission, as well as with the Code of Conduct.
6 See chap. XII, E/2004/23 –E/CN.4/2004/127.
7 Text presented to the Economic and Social Council as an addendum to the report of the United Nations High Commissioner for Human Rights (E/2002/68/Add.1).
8 Adopted without a vote in the 37th Meeting on 26 June 2014. A/HRC/RES/26/8 of 17/7/2014.
9 A/69/33797 contains further information on the assessment of the work of the mandate of the Special Rapporteur on trafficking in persons, especially women and children, during the decade of its establishment (2004–2014).
10 Manual of Operations, paragraph II.C.1.
11 Manual of Operations, paragraph II.C.5.
12 Manual of Operations, paragraph III.B.1.
13 Article 9 of the Code of Conduct.
14 Article 10 of the Code of Conduct.
15 A/68/256.
16 A/HRC/23/48.
17 A/67/261.
18 A/HRC/17/35.
19 A/HRC/4/23.
20 A/70/260.
21 A/69/33797.
35
Trafficking in human beings and international peacekeeping
Marco Odello
International peacekeeping operations (PKOs) and other types of military missions operate in areas affected by armed conflict and are often deployed for lengthy periods. Peacekeepers, including military, police, and civilian components, are involved in sexual abuse and crime, including sexual exploitation, forced prostitution, and other crimes usually covered by national criminal law and prohibited under international human rights law (IHRL) and international humanitarian law (IHL).
Routledge Handbook of Human Trafficking Page 87
