A/HRC/44/45 including the Protocol to the Forced Labour Convention, 1930 (No. 29), 43 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, 44 the Council of Europe Convention on Action against Trafficking in Human Beings 45 and the Association of Southeast Asian Nations (ASEAN) Convention against Trafficking in Persons, Especially Women and Children.46 In addition, many regional and international soft law instruments and guidance documents emphasize the importance of non-punishment for victims of trafficking by demonstrating policy preferences for the non-punishment principle as an accepted normative standard.47 This includes the Model Law against Trafficking in Persons (and the commentary thereto) of the United Nations Office on Drugs and Crime. 48 The principle of non-punishment is also stated in the Recommended Principles and Guidelines on Human Rights and Human Trafficking 49 and in the “Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking” of the Organization for Security and Cooperation in Europe. The General Assembly has also addressed the importance of non-punishment in the context of victims of trafficking in several resolutions. 50 A human rights-based approach requires that children’s involvement in criminal activities should not undermine their status as both children and victims, or their related rights to special protection.51 31. Inconsistencies in application of the principle across jurisdictions emerge because of differences in the nexus between the act of trafficking and the unlawful acts that is required for the principle to apply (e.g., unlawful activities that trafficked persons are “compelled to do”; 52 acts that they are “compelled to commit as a direct consequence” of being trafficked;53 and acts that are “directly related to the acts of trafficking”)54 and discretion by authorities in the application of this nexus. 32. In this respect, first, the competent authorities should consider that the notion of “compulsion” includes the full array of factual circumstances in which victims of trafficking lose the possibility to act with free will, not only under physical or psychological violence, threat or coercion, but also in the devastatingly prevalent scenarios wherein traffickers exploit victims by abusing their position of vulnerability. 55 33. Second, while a victim’s consent to the trafficking purpose of exploitation is irrelevant if any of the means set forth in article 3 (a) of the Trafficking in Persons Protocol are used,56 many jurisdictions are reluctant to fully embrace the principle of the irrelevance 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Art. 4 (2). Para. 14. A separate directive echoes the same non-punishment requirement set forth in Directive 2011/36/EU as regards child victims of sexual abuse and sexual exploitation: see Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA. Art. 26. Art. 14 (7). Anne T. Gallagher, The International Law of Human Trafficking (Cambridge, United Kingdom, Cambridge University Press, 2010), p. 285. Art. 10 (1). Guideline 4 (5). See, e.g., General Assembly resolutions 63/156, para. 12, and 64/293, para. 27. United Nations Children’s Fund, “Guidelines on the Protection of Child Victims of Trafficking” (New York, 2006), p. 10 (citing articles 37 and 40 of the Convention on the Rights of the Child). Council of Europe Convention on Action against Trafficking in Human Beings, art. 26. Directive 2011/36/EU, art. 8. ASEAN Convention, art. 14 (7). Organization for Cooperation and Security in Europe, “Policy and legislative recommendations”, para. 12. See art. 3 (b). Note that the means defined in article 3 (a) include the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person. 9