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Human trafficking and the rights of trafficked persons

Dr Jean-Pierre Gauci, Dr Noemi Magugliani

A new report has been published by the British Institute of International and Comparative Law (BIICL) and the International Bar Association (IBA) 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.

Through a comparative analysis of relevant international documents, jurisprudence and practices across Argentina, Australia, Canada, India, the United Kingdom and the United States, contributors from several IBA Committees, the IBA Legal Policy & Research Unit (LPRU) and BIICL undertook research into the status of the non-punishment principle and its global interpretation and implementation. In addition, the project team drafted and distributed a global survey among IBA members and anti-trafficking stakeholders and coordinated six case studies.

This report, Human trafficking and the rights of trafficked persons - an exploratory analysis on the application of the non-punishment principle, aims to provide guidance to better understand the structural, legal and practical barriers to the implementation of the principle, and to contribute to the ongoing conversation among judges, lawyers, legislators and policymakers on the protection of trafficked persons and the application of the non-punishment principle.

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.

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