The Non-Punishment Principle in Trafficking In Persons
BIICL is delighted to be working with the International Bar Association (IBA) on a new research project on the application of the non-punishment principle in law and practice across different jurisdictions.
The overall goal of the project is to provide concrete recommendations towards improving the legislative provision and practical implementation of the non-punishment principle. The project will also develop a pilot multi-disciplinary program to build the capacity of lawyers and law enforcement personnel on the principle of non-punishment and ancillary matters.
At its most basic statement, the non-punishment principle stipulates that the involvement of trafficked persons in unlawful activities as a direct consequence of their trafficking experience should not be criminalised and punished. The decision by the European Court of Human Rights in VCL and AN v United Kingdom in early 2021 highlighted the place of the principle as part of the protective obligations of States Parties. In addition, the 2021 report of the United Nations Special Rapporteur on trafficking in persons, Professor Siobhán Mullally, highlighted that the "[e]ffective implementation of the non-punishment principle is essential to ensuring that States' duties to take protective operational measures of assistance and protection ... are met". Yet, the report recognises that "despite its recognition in international instruments and supporting jurisprudence, [the principle's] application is still irregular across jurisdictions." The findings of the Special Rapporteur echo further research indicating that the application of the principle is varied and inconsistent.
Through this project, BIICL and the IBA will conduct a legal analysis of international, regional and domestic law to elaborate how the non-punishment principle has been defined, introduced, and given effect across legal systems. The analysis will adopt a gender, age and diversity lens in determining the way gender dynamics identified in the trafficking context are reflected (or otherwise) in the application of the non-punishment principle. The project will include a series of stakeholder interviews (with academics, policy makers, practitioners, prosecutors and judges) and a survey of IBA members across the globe and other anti-trafficking stakeholders about their understanding of the principle and its application in their particular context. A series of six case studies will be undertaken, exploring contexts in which there is an evolving experience of the application of the non-punishment principle. Beyond the research, the project will develop and compile resources to help raise awareness of the principle and promising practices in its application and develop tailor made training courses for legal professionals and others on the principle. Through these activities, we will complement the excellent work that has already been done in this field and contribute to the better realisation of the rights of trafficked persons.
