Enhancing Trafficking in Persons (TIPs) criminal investigation, prosecution and victim and witness protection among African and European countries

Enhancing Trafficking in Persons (TIPs) criminal investigation, prosecution and victim and witness protection among African and European countries BACKGROUND PAPER 1. INTRODUCTORY REMARKS: OVERVIEW OF POLICY DEVELOPMENTS Trafficking in persons is a worldwide phenomenon affecting women, children and men alike. The purposes of exploitation are manifold and take place in various sectors such as agriculture, construction or domestic work. Even though the international community has stepped up its efforts to combat trafficking in persons, developments at the national and regional levels still vary. Political commitment and concrete action are needed to send the right signals to those in need of assistance, as well as to those involved in the crime of human trafficking. In its Joint Africa-EU Strategy and Action Plan 2011-2013, the Africa-EU Partnership on Migration, Mobility and Employment aims at finding concrete solutions and adequate responses to irregular migration flows and especially trafficking in persons. The competencies and responsibilities for migrationrelated issues and policies largely lie with sovereign states. Still, all African states and European Union (EU) Member States are committed to enhance inter-regional, continental and inter-continental dialogue and cooperation as well as to develop concrete and sustainable cooperation modalities. The Action Plan also foresees specific action to counter trafficking in human beings: Human Trafficking Initiative. The AUC, in partnership with the EC, will assist Regional Economic Communities (RECs) in developing and implementing regional action plans to strengthen protection, prevention and prosecution of trafficking in human beings, in line with the Ouagadougou Action Plan and AU.COMMIT, that cover countries of origin, transit and destination. Furthermore a monitoring and evaluation tool will be designed and implemented at regional level to enable measurement of implementation and impact as well as to assist in the identification of best practices for the African Continent. 1 The AU Commission Initiative against Trafficking (AU.COMMIT) Campaign seeks to raise awareness on the Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women and Children, across the African continent, and propel its implementation. The Ouagadougou Action Plan was adopted by the African Union, the European Union and their Member States in 2006, and is a declaration of their joint intent to scale up efforts in the fight against human trafficking. The Campaign outlines a threepronged strategy geared at preventing trafficking, protecting victims, and prosecuting those involved in the crime. The Chairperson of the African Union Commission has to report periodically on the implementation of the Ouagadougou Action Plan. The AU.COMMIT Campaign was launched with the Economic Community of West African States (ECOWAS) in March 2010, and in December 2010 with the East African Community (EAC) and the Intergovernmental Authority on Development (IGAD). Discussions at these meetings and their follow-up workshops highlighted the need to build and enforce national legal frameworks to combat human trafficking in order to prosecute those involved in the crime. This meeting gathers Member States of the EU, ECOWAS, EAC, IGAD and SADC, as well as central African countries. Participants will have the opportunity to update their knowledge about human trafficking in the participating countries and regions, and to exchange experience and good practice in the fields of legislative frameworks, criminal investigation, prosecution and victim and witness protection. The event will furthermore provide a means to enhance transnational cooperation as well as to identify potential initiatives for enforcing the prosecution pillar of AU.COMMIT. Practice-oriented working groups will be dedicated to the following technical topics: 1. Building and enforcing legal frameworks to prosecute traffickers 2. Transnational criminal investigation and prosecution cooperation 3. Identification of victims and victim/witness protection in the context of prosecution 1 Joint Africa EU Strategy Action Plan 2011-2013, p. 63, http://staging.africa-eu-partnership.org/sites/default/files/doc_jaes_action_plan_2011_13_en.pdf 1

Participants will also have the opportunity to exchange and share regional experiences and know how in the following working groups: a) Enhancing law enforcement and prosecution, as well as victim and witness protection in West and Central Africa identifying potential initiatives for enforcing the prosecution pillar of AU.COMMIT b) Enhancing law enforcement and prosecution, as well as victim and witness protection in East Africa identifying potential initiatives for enforcing the prosecution pillar of AU.COMMIT c) Enhancing law enforcement and prosecution, as well as victim and witness protection in southern Africa identifying potential initiatives for enforcing the prosecution pillar of AU.COMMIT These working groups will serve as a platform to brainstorm and identify activities and initiatives to strengthen anti-trafficking responses in these regions, at the policy and at the operational level. In order to have in-depth and fruitful discussions at the meeting participants are kindly requested to bring relevant legal acts, national strategies and action plans, national reports as well as operational agreements between relevant stakeholders from their countries and regions to the event. This background paper provides an introduction to the three technical topics which the meeting is focussed on: building and enforcing legal frameworks to prosecute traffickers; transnational criminal investigation and prosecution cooperation; and identification of victims and victim/ witness protection in the context of prosecution. 2. BUILDING AND ENFORCING LEGAL FRAMEWORKS TO PROSECUTE TRAFFICKERS Trafficking in persons is a complex criminal offense. It merits a solid legal framework that is understood and efficiently implemented by all branches of government. A number of related crimes are committed alongside trafficking in persons. Governments need to act vigorously in finding adequate approaches for comprehensive victim identification and assistance as well as for efficient prosecution. International definition It took UN States Parties a long time to agree to one legal definition of trafficking in persons. While the adoption of such a definition in the UN Trafficking Protocol is a major achievement in the fight against trafficking in persons, it became evident that indeed establishing the criminal offense 2 of trafficking in persons based on this international definition is complex and time consuming. 3 (a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of 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, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) Child shall mean any person under eighteen years of age. When breaking down this definition it turns out that trafficking in persons has to be criminalised as a combination of all constituent elements that are listed in the definition including: acts such as recruitment, transportation and transfer of persons, means such as the threat or use of force, coercion, abuse of power, etc., and purpose such as exploitation for forced labour, forced prostitution, etc. However, in order to establish the criminal offense of human trafficking it is enough to prove the intent to exploit a person, i.e. the exploitation does not have to occur factually. In the case of trafficking in children there is no need to show that force, deception or any other means were used, i.e. trafficking occurs when a child was subject to an act such as recruitment for the purpose of exploitation. It is important to bear in 2 Ibid, Article 5 Criminalization, p. 3 3 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, Palermo 2000, Article 3 Use of terms, p. 2 2

mind that the consent of any trafficked person to the intended exploitation becomes irrelevant when any of the means were applied. In addition to the UN Trafficking Protocol there are a number of international treaties that are relevant in the fight against trafficking in persons, most notably conventions that have been developed under the auspices of the International Labour Organization (ILO) 4 and other UN conventions such as the Convention on Slavery, the Convention on the Elimination of All Forms of Discrimination against Women or the Convention on the Rights of the Child. 5 Recent regional standard-setting efforts aim at enhancing international cooperation and strengthening human rights protection for trafficked persons based on the principles of the UN Trafficking Protocol, such as the - Council of Europe Convention on Action against Trafficking in Human Beings (ETS 197, 2005), and the - Directive 2011/36/EU of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (2011). Translation into domestic legislation and its application The adoption of an international definition 6 on trafficking in persons certainly enabled States Parties to create some level of consensus-based standardization of concepts. 7 This is needed for smooth and efficient international cooperation when investigating and prosecuting cases of human trafficking. Bearing in mind that the level of abstraction in international treaties is higher than that required for domestic legislation, national legislators were asked to rather reflect the spirit and meaning of the various articles of the Trafficking Protocol and the Organized Crime Convention. 8 The Trafficking Protocol has been developed in the framework of the UN Convention against Transnational Organized Crime. However, UN States Parties reiterated that the elements of transnationality and the involvement of an organised criminal group should in no way limit domestic prosecution. This means that the crime of trafficking in persons should also be prosecuted if all its constituent elements occur within the borders of a sovereign state and if the alleged perpetrators do not belong to an organised criminal group. International law clearly extends liability in trafficking offences to natural and to legal persons. 9 It is indeed important to consider that various plausible case scenarios take effect and to accommodate the possibility for their efficient prosecution in domestic law. For instance, organised criminal groups involved in firearms trafficking are also engaged in smuggling or trafficking human beings or narcotic drugs or other commodities, or in other crimes such as money-laundering, and national legislatures will need to ensure that the formulation of provisions on the relevant criminal offences pursuant to the Convention and its Protocols will support coordinated efforts to investigate and prosecute all of those activities together, where appropriate. 10 Related criminal offences Trafficking in persons can be linked to a number of other criminal offences from money laundering to document forgery. 11 Closely related with the offence of trafficking in persons is certainly corruption, the known, systematic and recurring involvement 12 of State officials in human trafficking operations. In this regard it is noteworthy that the African Union has adopted a Convention on Preventing and Combating Corruption and Related Offences in 2003. 4 1930 Convention Concerning Forced and Compulsory Labour (ILO Convention 29), 1957 Convention Concerning the Abolition of Forced Labour (ILO Convention 105), 1999 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO Convention 182). 5 For a succinct overview consult UNOHCHR, Commentary: Recommended Principles and Guidelines on Human Rights and Human Trafficking, New York and Geneva 2010, pp. 17. 6 The Trafficking Protocol entered into force on 25 December 2003. For an overview of relevant signatures and ratification, see Annex. 7 UNODC, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, New York 2004, para 35, p. 269 8 UNODC, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, New York 2004, para 13, p. 249 9 Legal persons may include commercial corporations operating in different fields including entertainment, tourism, labour recruitment or aviation. 10 Ibid, para. 29, p. 266 11 For an overview of possible offences committed at various stages of the trafficking in persons process and other related crimes check, UNODC Toolkit to Combat Trafficking in Persons, New York 2008, p. 108 12 UNOHCHR, Commentary: Recommended Principles and Guidelines on Human Rights and Human Trafficking, New York and Geneva 2010, p. 76 3

While it is of tremendous importance to adopt and adapt legislative frameworks to the realities of human trafficking and its constituent elements, it is equally important to ensure that all relevant legislation is efficiently implemented. Allegations of human trafficking need to be appropriately investigated, and where there is sufficient evidence prosecuted and put to trial. Often there seems to be confusion between the crimes of trafficking in persons and smuggling of migrants, yet these phenomena are distinct. Smuggling of migrants is defined as the facilitation of illegal border crossing for financial or other material benefit for personal gain. Smuggling of migrants is considered a crime against the state and its sovereignty while trafficking in persons is considered a crime against an individual. Due to their process-implicated nature it may often be difficult to establish or maintain the legal distinctions in practice. A smuggled migrant may easily turn into a trafficked person. It is important to have effective identification procedures and assistance structures in place in order to provide each individual with the specific care they need. Trafficking in persons is a human rights violation Trafficking in persons is first and foremost a violation of human rights. In order to promote and protect the rights of at-risk groups and trafficked persons, the State has a general obligation to adopt an adequate legal framework and to provide appropriate remedies for victims of crime, such as compensation claims. States that fail to criminalize trafficking fully are failing in their obligation to protect victims of trafficking and to prevent future trafficking. They are also failing to provide the necessary structures within which State agencies can investigate, prosecute and adjudicate cases of trafficking in persons to the required standard of due diligence. 13 Guiding questions Has your country signed/ratified the Trafficking Protocol and other relevant international treaties, such as ILO Conventions or treaties against corruption, which support the fight against trafficking in persons? Do law enforcement officials and judiciary have the necessary resources and capacities to investigate and prosecute trafficking cases? Do they encounter difficulties in applying relevant laws? Is relevant legislation currently being applied? How many of the investigated human trafficking cases are actually prosecuted and convicted? For which criminal offenses are perpetrators in trafficking cases most likely to be convicted? Are sanctions proportionate to the gravity of the offence of human trafficking? Do you consider the confiscation of assets as a useful and practical tool for prosecution? To what extent are criminal proceeds being traced, frozen and confiscated? 3. TRANSNATIONAL CRIMINAL INVESTIGATION AND PROSECUTION COOPERATION Trafficking in persons affects all countries as countries of origin and countries of destination. It merits concerted transnational cooperation, which is based on a common understanding of the crime. Extradition, mutual legal assistance and informal cooperation measures are essential for the successful prosecution of trafficking cases that span across country borders. It is possible for all elements of the crime of trafficking to take place within national borders and for offenders, victims and evidence to be located within the same country. Typically, however, trafficking cases are much more complicated [ ]. Alleged offenders, victims and evidence can each (or all) be located in two or more countries. The same fact can justify and give rise to criminal investigations and prosecutions in multiple jurisdictions. Informal cooperation mechanisms, and legal tools such as extradition and mutual legal assistance, are important means of eliminating safe havens for traffickers, thereby ending the high levels of impunity currently enjoyed by traffickers. 14 The UN Convention against Transnational Organized Crime provides a framework for international cooperation in the fight against organised crime including human trafficking. The Trafficking Protocol 13 UNOHCHR, Commentary: Recommended Principles and Guidelines on Human Rights and Human Trafficking, New York and Geneva 2010, p. 185 14 UNOHCHR, Commentary: Recommended Principles and Guidelines on Human Rights and Human Trafficking, New York and Geneva 2010, p. 203 4

explicitly states that its purpose is to promote cooperation among States Parties in order to prevent and combat trafficking in persons as well as to protect and assist the victims of such trafficking, with full respect for their human rights. 15 The technical and legal means to achieve such ambitious aims must be built on a functioning system of cooperation between relevant stakeholders at the national, regional and international level. Equally important are a common understanding and streamlined legal concepts for prosecuting cases of serious crime. To this end the articles of the Organized Crime Convention and its Protocols describe conduct that must be criminalized by domestic law and made punishable by appropriate sanctions. 16 According to the Conference of the Parties, the Organized Crime Convention is effectively being used as a basis for granting requests for extradition, mutual legal assistance and international cooperation for the purposes of confiscation of criminal proceeds, especially where there are no bilateral agreements or domestic law does not provide for such cooperation. 17 Extradition 18 Perpetrators of serious crime may try to escape prosecution and justice by leaving a country. Extradition is a means to bring them to justice in the prosecuting country through a formal process that results in the return or delivery of fugitives to the jurisdiction in which they are wanted. One prerequisite for the smooth application of extradition procedures is dual criminality, i.e. the criminal offence is recognised in both the requesting and the requested state. Each State must ensure fair treatment at all stages of the proceedings, including enjoyment of all the rights and guarantees provided by the domestic law 19 in the requested state. However, a Government that denies an extradition request on the grounds that the fugitive is a national of its country should prosecute the case domestically with the same diligence as a serious domestic offence. Mutual legal assistance 20 When investigating and prosecuting human trafficking cases, national authorities frequently need the assistance of other States to obtain evidence abroad in a way that is admissible in domestic courts. The cooperation between law enforcement agencies and judicial authorities from different countries is generally governed by mutual legal assistance regulations set out in international and domestic laws. These bilateral or multilateral instruments for instance allow for summoning witnesses, locating persons, producing documents, tracing proceeds of crime or issuing warrants. The Organized Crime Convention obliges States Parties to afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings. Governments have to make sure that nothing in relation to requesting mutual legal assistance will infringe upon the human rights of the individuals, who are subject to the request or any other third party. Informal cooperation measures 21 Informal cooperation is per se less official and less rule-bound but in general faster, cheaper and more flexible in its application. Informal cooperation measures include joint investigations and law enforcement cooperation, and could span from identifying and locating suspects, victims and witnesses to taking voluntary witness statements or checking criminal records. In addition, coordinated, specialised investigator-prosecutor teams have been used at various regional levels, including in African regions. The following examples showcase initiatives that foster cross-border cooperation on issues related to trafficking in persons: Multilateral Cooperation Agreement to Combat Trafficking in Persons, Especially Women and Children in West and Central Africa (2006), with the aim to promote friendly cooperation among the Parties in order - to develop a common front to prevent, fight, suppress and punish trafficking in persons by mutual cooperation at the international level; - to protect, rehabilitate and reintegrate victims of trafficking into their original environment where necessary; 15 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, Palermo 2000, Article 2 Statement of purpose, p. 2 16 UNODC, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, New York 2004, para 11, p. 249 17 UNODC Toolkit to Combat Trafficking in Persons, New York 2008, p. 121 18 For more detailed information consult: - UNODC Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, New York 2004, Chapter V, pp. 193-241 - UNODC Toolkit to Combat Trafficking in Persons, New York 2008, Chapter IV, pp. 119-172 - UNOHCHR Commentary: Recommended Principles and Guidelines, pp. 203-212 19 United Nations Convention against Transnational Organized Crime, Article 16(13), p. 18 20 See FN 16. 21 See FN 16. 5

and - to give assistance to each other in the investigation, arrest and prosecution of offenders through the respective competent authorities of the Parties. 22 Multilateral Cooperation Agreement to Combat Child Trafficking in West Africa (2005): this agreement draws upon already existing bilateral agreements within the region and emphasises the protection of child victims as its key priority. Eastern Africa Police Chiefs Cooperation Organization (2002) was set up as an institutional body to counter cross-border crime within the region. The INTERPOL Subregional Bureau in Nairobi hosts its secretariat. 23 Trafficking in persons is a serious crime that can span across borders. It calls for a concerted international response. Guiding questions - Do relevant stakeholders such as criminal investigators, prosecutors and judges meet at the national, regional and international level to discuss international cooperation in investigative, legal and judicial matters? - Is relevant personnel trained adequately to respond to the requests emerging from international cooperation? - What are the limitations to regional and international cooperation? For instance, how successful are financial investigations such as identifying, tracing and freezing criminal proceeds derived from human trafficking? - Which practical experiences in the fields of international investigative, legal and judicial cooperation can be showcased as good practice? 4. IDENTIFICATION OF VICTIMS AND VICTIM/ WITNESS PROTECTION IN THE CONTEXT OF PROSECUTION Trafficking in persons constitutes a serious crime and gross human rights violation. Swift victim identification is crucial for adequate victim assistance and efficient prosecution. The rights of trafficked persons need to be safeguarded at all stages upon their identification. Victims of trafficking need to receive assistance which is unconditional of their willingness to act as a witness. Current prosecutorial practice relies heavily on the victim's active participation in criminal proceedings. Swift victim identification The identification of trafficked persons 24 can prove to be complex and protracted. In addition, previously bad experience with authorities or psychological pressure and manipulation may keep trafficked persons from coming forward, and either identifying themselves as victims of trafficking, or wanting to be identified as such. While victim identification is crucial for both adequate victim assistance and efficient prosecution, mechanisms that aim to ensure a professional and swift identification of victims of trafficking still lack structure, coordination and cooperation. So far, the most common means of identifying trafficked persons are through law enforcement action, social outreach work or hotlines. Certainly the aim must be to involve all relevant stakeholders, who deal with vulnerable groups and may come across trafficked persons, more vigorously. Only concerted efforts based on a clear understanding of mandates and roles will merit sustainable success in identifying trafficked persons and guiding them towards assistance measures. 22 Article 2, p. 5 23 For more information, see: http://www.interpol.int/public/icpo/pressreleases/pr2011/news20110218.asp 24 ICMPD, Guidelines for the Development of a Transnational Referral Mechanism for Trafficked Persons. South East Europe, Vienna 2009, SOP 1: Identification, pp. 34. OSCE/ODIHR, National Referral Mechanisms: Joining Efforts to Protect the Rights of Trafficked Persons. A Practical Handbook, 2004, pp. 16. UNODC, Tookit to Combat Trafficking in Persons, New York 2008, Chapter 6: Victim Identification, pp. 251. UNOHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Commentary, HR/PUB/10/2, New York/Geneva 2010, Principle 8: Protection of and support for victims, pp. 141. 6

Unconditional victim support All trafficked persons should be afforded assistance upon their identification as victims of a serious crime, unconditional of her or his willingness to act as a witness. 25 It is, however, very common that the availability of victim protection and assistance measures is dependent on the victim s willingness to cooperate with law enforcement. Often criminal investigation and prosecution rely heavily on the witness testimony. Yet experience has shown that victims who have received adequate assistance, are more likely to act as reliable witnesses. Such victim support should ideally be provided in close cooperation with non-governmental organisations. The Ouagadougou Action Plan upholds this principle and does not establish conditional links between victim identification, victim assistance and a victim s participation in criminal proceedings 26 even though states are requested to encourage victims of trafficking to testify in the investigation and prosecution of cases of trafficking in human beings, by giving due consideration to the safety and security of victims and witnesses at all stages of legal proceedings, in particular with regard to children. 27 In any anti-trafficking action the human rights of trafficked persons must be at the centre of all efforts. Victim assistance entails first and foremost access to safe accommodation and a recovery/ reflection period, as well as psychological, medical and social counselling and the protection of the victim s privacy. Victim assistance furthermore implies access to information, as well as legal counselling and legal representation if the victim decides to cooperate with the criminal justice system or to claim compensation. Victim s rights in criminal proceedings Once a victim is enrolled in court proceedings an additional set of victim assistance and protection measures take effect. In that regard the European Union calls upon its Member States to ensure that victims have a real and appropriate role in its criminal legal system. It shall continue to make every effort to ensure that victims are treated with due respect for the dignity of the individual during proceedings and shall recognise the rights and legitimate interests of victims with particular reference to criminal proceedings. 28 Depending on the respective national legislation victims may be eligible to closed-door hearings and other effective and appropriate protection from potential retaliation or intimidation in particular during and after the investigation and the prosecution of perpetrators. 29 To this end the Ouagadougou Action Plan requests its signatories to adopt legal provisions [ ] for the protection of victims of trafficking [as well as to] adopt policies for the protection and support of victims of trafficking and protection from harm by traffickers, criminal networks and pimps. 30 ECOWAS has developed Draft Regional Guidelines on Protection, Support and Assistance to Witnesses that aim at enhancing criminal justice systems in compliance with international law. A major challenge for the successful prosecution of trafficking-related offenses, and especially trafficking in persons, remains the lack of protection available and provided to witnesses. The Guidelines reiterate that any efficient and effective criminal justice system has to be based on: (a) adequate law enforcement presence as a means of deterring the commission of offenses; (b) access to justice by victims of crime; (c) respect for the fundamental human rights of victims and offenders and adherence to the rule of law; (d) protection and assistance to victims of crime and prevention of re-victimization; (e) availability of specialized assistance to deal with trauma and other associated problems faced by victims and witnesses; (f) institution of appropriate measures to enable witnesses give testimony in criminal trials without fear of reprisals; and (g) the existence of sanctions that are appropriate as a specific and general deterrent to offenders and potential offenders. 31 25 Council of Europe Convention on Action against Trafficking in Human Beings, ETS 197, Warsaw 2005, Art. 12(6). 26 See Ouagadougou Action Plan 2006, Chapter II: Victim Protection and Assistance, p. 4. 27 Ibid. 28 Council of the European Union, Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA), Art. 2(1). 29 Council of Europe Convention on Action against Trafficking in Human Beings, Art. 28. 30 Ouagadougou Action Plan, Chapter III: Legislative Framework, Policy Development and Law Enforcement, p. 5. 31 ECOWAS Commission, Draft Regional Guidelines on Protection, Support and Assistance to Witnesses 7

At all times victims should be provided with information about the status of relevant criminal and other legal proceedings, and that the status of these proceedings is considered prior to any repatriation of the victims. 32 And, in accordance with the basic principles of every national legal system, States should consider enacting a non-punishment clause for victims of trafficking. The newly adopted EU Directive on preventing and combating trafficking in persons and protecting its victims calls upon EU Member States in this regard: Victims of trafficking in human beings should [ ] be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in. 33 Guiding questions Who is responsible for identifying victims of trafficking? What should be the role of police and prosecutors? What should be the role of service providers? Are victim referral mechanisms in place at the national and regional level? If so, what are their main principles and key structures? If not, which principles should victim referral mechanisms adhere to and how could they be structured? How can the policy and working levels of the Ministries of Health, Ministries of Labour and Social Welfare, Ministries of Interior, Ministries of Justice, etc. be efficiently involved in order to guarantee comprehensive and targeted victim support and protection measures? Do current criminal justice systems and particularly court practice promote the protection of victim s and witness rights? Are victims confronted with perpetrators? Does the national legislation contain a provision of non-punishment for victims of trafficking? 5. CONCLUDING REMARKS This meeting will be a unique opportunity to take stock in the areas of legislative frameworks, criminal investigation and prosecution within and across borders, as well as available victim/ witness protection measures. Furthermore it will serve to identify opportunities to enhance transnational cooperation in the fight against human trafficking, as well as potential initiatives for enforcing the prosecution pillar of AU.COMMIT. Trafficking in persons has received increased attention, including at the regional level. However, a number of States have not yet signed the Trafficking Protocol. Technical assistance should be provided at the policy, legislative and operational levels to more effectively fight human trafficking. Political will and the allocation of adequate financial and human resources will lead to better results in the prosecution of traffickers and their accomplices, as well as in the comprehensive protection of victims, witnesses and their rights. 32 Ouagadougou Action Plan, Chapter III: Legislative Framework, Policy Development and Law Enforcement, p. 5 33 European Parliament and Council of the European Union, Directive on preventing and combating trafficking in human beings and protecting its victims, PE-CONS 69/10, Brussels 2011, Art. 14. 8

Annex: RELEVANT REFERENCE MATERIALS The Ouagadougou Action Plan is a declaration of the will and joint intent of the African Union and the European Union and their Member States to enhance their efforts to fight trafficking. It provides specific recommendations to be implemented by the Regional Economic Communities (RECs) and Member States based on legal and political commitments at the regional, continental and global levels. It further upholds and reinforces the international and regional legal instruments on human rights particularly the conventions on trafficking in person, elimination of discrimination of women, and protection of the rights of the child. These include: - Universal Declaration of Human Rights (1948); - UN Convention on the Elimination of all Forms of Discrimination against Women (1979); - UN Convention on the Rights of the Child (1989); - UN Convention against Transnational Organised Crime (2000) - UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000); supplementing the UN Convention against Transnational Organized Crime - Constitutive Act of the African Union (2002); - African Charter on Human and Peoples Rights (1981) and its Protocol relating to the Rights of Women (2002); - African Charter on the Rights and Welfare of the Child (1990); - ILO Convention on Worst Forms of Child Labour (1999); And it reinforces declarations including: - Beijing Declaration and Platform of Action (1995); - Declaration of the World Summit for Children (1990); - World Fit for Children- UN General Assembly Special Session on Children (2002); - African Common Position on Children (Declaration and Plan of Action 2001); and - Call for Accelerated Action on the Implementation of the Plan of Action Towards Africa Fit for Children (2008-2012) For more information, consult the Special Summit web page on the African Union website: www.africa-union.org It is furthermore recommended to consult following materials for further reading: - UNODC Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, New York 2004 - UNODC Toolkit to Combat Trafficking in Persons, New York 2008 - UNOHCHR Commentary: Recommended Principles and Guidelines on Human Rights and Human Trafficking, New York and Geneva 2010 - Rakeb Messele and Mebratu Gebeyehu, Desk review of counter-trafficking initiatives in IGAD and EAC regions, Addis Ababa 2011 - UNODC, Vulnerabilities of Conflict and Post-Conflict Countries, Regional UN.GIFT Meeting, Kampala 2007 - ECOWAS and ECCAS, Situation Analysis on Trafficking in Persons, particularly of women and children in West and Central Africa, Libreville 2006 9

Annex: STATUS OF RATIFICATION OF PARTICIPATING STATES May 2011 UN Organised Crime Convention UN Trafficking Protocol West Africa ECOWAS Economic Community of West African States Benin 30-08-2004 30-08-2004 Burkina Faso 15-05-2002 15-05-2002 Cape Verde 15-07-2004 15-07-2004 Cote d Ivoire Signed in 2000 No signatory Gambia 05-05-2003 05-05-2003 Ghana No signatory No signatory Guinea 09-11-2004 09-11-2004 Guinea Bissau 10-09-2007 10-09-2007 Liberia 22-09-2004 22-09-2004 Mali 12-04-2002 12-04-2002 Mauritania 22-07-2005 22-07-2005 Niger 30-09-2004 30-09-2004 Nigeria 28-06-2001 28-06-2001 Senegal 27-10-2003 27-10-2003 Sierra Leone Signed in 2001 Signed in 2001 Togo 02-07-2004 08-05-2009 Central Africa Congo-Brazzaville Signed in 2000 Signed in 2000 Gabon 07-10-2002 09-03-2004 Chad 18-08-2009 18-08-2009 Cameroon 18-06-2004 24-09-2004 East Africa EAC East African Community IGAD Inter-governmental Authority on Development Burundi Signed in 2000 Signed in 2000 Djibouti 20-04-2005 20-04-2005 Ethiopia 23-07-2007 No signatory Kenya 16-06-2004 05-01-2005 Rwanda 26-09-2003 26-09-2003 Somalia No signatory No signatory Sudan 10-12-2004 No signatory Tanzania 24-05-2006 No signatory Uganda 09-03-2005 Signed in 2000 Eritrea No signatory No signatory Southern Africa SADC Southern African Development Community Angola Signed in 2000 No signature Botswana 29-08-2002 29-08-2002 Democratic Republic of the Congo 28-10-2005 (acceptance) 28-10-2005 (acceptance) Lesotho 24-09-2003 24-09-2003 Madagascar 15-09-2005 15-09-2005 Malawi 17-03-2005 17-03-2005 (acceptance) Mauritius 21-04-2003 24-09-2003 (acceptance) Mozambique 20-09-2006 20-09-2006 Namibia 16-08-2002 16-08-2002 Seychelles 22-04-2003 22-06-2004 South Africa 20-02-2004 20-02-2004 Swaziland Signed in 2000 Signed in 2001 Tanzania (Also in EAC) 24 May 2006 24 May 2006 Zambia 24-04-2005 (acceptance) 24-04-2005 (acceptance) Zimbabwe 12-12-2007 No signatory 10

Annex: TRAFFICKING IN PERSONS A BRIEF OVERVIEW 11

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