A/HRC/44/45
of consent, and thus are reluctant to apply the non-punishment principle, even in situations
in which the “means” relevant to trafficking in persons can be established.
34.
Third, some trafficking instruments and domestic legislation explicitly limit
application of the non-punishment principle to certain offences. However, it should be
stressed that any restrictions regarding the scope of application of the non-punishment
principle based on the severity of crimes or on a closed list of crimes is not allowed by any
binding or non-binding international instrument.
35.
Fourth, in practice, authorities continue to convict trafficked persons for offences,
such as prostitution/sex work or illegal status, that are linked to their situation as trafficked
persons. For example, in States that criminalize prostitution/sex work, this can result in
criminalizing trafficking victims involved with this. Other States have broadly applicable
non-punishment provisions, yet have a strong political inclination towards criminalizing
and prosecuting irregular migrants that could cause criminalization of trafficked persons. 57
36.
In order to implement correctly the non-punishment principle, it should be clear that
it does not imply a previous formal identification by immigration or law enforcement
authorities. It is also important to correctly identify the threshold for applicability of the
non-punishment principle, which should not require clear evidence, but rather reasonable
grounds to believe that trafficking is taking place. Furthermore, a causational model should
be preferred, in which the implementation of the non-punishment principle is not based on
the use of force or coercion but on the link between the trafficking process and the
commission of crime or unlawful activity. Even in legislations in which the nexus linking
the illegal activity with trafficking is one of “compulsion”, such a notion should be
interpreted in the light of the definition of trafficking, including among illicit means, not
only violence, threat or coercion, but also abuse of a position of vulnerability. The nonpunishment principle also implies that criminal proceedings should not be initiated or
should be terminated at an early stage, or otherwise as soon as indications of trafficking
have been identified. For this purpose, clear guidance should be addressed to prosecutors
and investigative judges.
37.
Another widespread gap in national legislation is related to the fact that, despite the
non-punishment principle, victims might have been convicted for crimes related to their
situation of trafficked persons and have a criminal record. This hampers, among other
things, their social inclusion. In such cases, their criminal records should be immediately
vacated.
C.
Moving from victimhood to agency, with a focus on gender and childsensitive responses, including in conflict and post-conflict settings
38.
A cultural shift is necessary in order to see trafficked persons not solely as victims
but also as agents of their own life project. Trafficked persons have the ability to regain
control of their lives and make decisions based on their own interests and life projects, if
adequately supported in the recovery phase and correctly informed. As regards trafficking
for labour exploitation, such cases have often been discovered as a consequence of
unionization or other forms of workers’ solidarity and concerted action. Many women and
girls subjected to sexual exploitation, when they have been helped to regain control of their
bodies and lives, often through meaningful relationships with other women, have
undertaken a successful process leading to their social inclusion.
39.
The Special Rapporteur has specifically investigated trafficked persons’ agency
throughout her research on trafficking in conflict and post-conflict settings, especially
highlighting the important role of women, including survivors of trafficking, in prevention,
protection, participation and relief and recovery, which are also the four main pillars of the
women and peace and security agenda of the Security Council. The Special Rapporteur has
found that trafficking is not just occasionally linked with conflict, but is a systematic
consequence of it. People, including children, kidnapped or recruited to be child soldiers or
57
10
See also CTOC/COP/WG.4/2010/4, para. 4.
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