The principle of non-punishment and former victims of trafficking in persons : Defining the end of victimhood
Pulkkinen, Sarjanna (2023)
2023
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https://urn.fi/URN:NBN:fi-fe2023050942573
https://urn.fi/URN:NBN:fi-fe2023050942573
Tiivistelmä
Human trafficking refers to the process where individuals are either placed or maintained in an exploitative situation for economic gain. Victims of trafficking are exploited for several different purposes, including forced labour and commercial sexual exploitation, and during the trafficking process victims are often compelled to commit unlawful acts by their traffickers. Additionally, former victims of trafficking may commit criminal offences even after their trafficking experience. There may at times be difficulties in connecting a criminal act to the perpetrator’s (former) status as a victim of human trafficking. The question that arises out of this is how can courts and other authorities determine to what extent the perpetrator did it as a consequence of their own past experience of trafficking and the trauma caused by it? In other words, how well is the victim/perpetrator paradigm recognized within international legal frameworks?
The non-punishment principle was established as an incentive to offer protection trafficking victims. The principle implies that States should refrain from punishing trafficked persons for their involvement in unlawful activities they are involved in due to their situation as a victim of trafficking. The aim of the thesis is to advocate for a broader consideration of the victims' long-term effects caused by trafficking and through this better distinguish victims from perpetrators. The principle is explicitly mentioned in, inter alia, the Council of Europe Convention on Action against Trafficking in Human Beings as well as in the Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. These, among other international, regional, and national instruments governing trafficking in persons will be analysed from the abovementioned perspective. Both a human rights-based and a criminal justice approach will be taken. The human rights-based approach places the victim at the centre of the action of eliminating trafficking in persons, and as the question at issue mainly deals with the rights of victims of trafficking, the human rights-based approach will be prominent.
The case of Ongwen served as an incentive for this particular analysis. Dominic Ongwen was the first victim of trafficking for child soldiering to be found guilty of committing the same crimes he as a child had suffered himself. However, as this case was the first and so far, only one, of its kind, there are only few definitive conclusions that can be drawn. The importance of considering the long-term consequences former victims of human trafficking may suffer from should nonetheless be considered when assessing criminal liability. This requires that the victims are correctly identified as victims of human trafficking by a competent authority and that this assessment is duly noted during throughout the various legal and social processes that may follow.
The non-punishment principle was established as an incentive to offer protection trafficking victims. The principle implies that States should refrain from punishing trafficked persons for their involvement in unlawful activities they are involved in due to their situation as a victim of trafficking. The aim of the thesis is to advocate for a broader consideration of the victims' long-term effects caused by trafficking and through this better distinguish victims from perpetrators. The principle is explicitly mentioned in, inter alia, the Council of Europe Convention on Action against Trafficking in Human Beings as well as in the Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. These, among other international, regional, and national instruments governing trafficking in persons will be analysed from the abovementioned perspective. Both a human rights-based and a criminal justice approach will be taken. The human rights-based approach places the victim at the centre of the action of eliminating trafficking in persons, and as the question at issue mainly deals with the rights of victims of trafficking, the human rights-based approach will be prominent.
The case of Ongwen served as an incentive for this particular analysis. Dominic Ongwen was the first victim of trafficking for child soldiering to be found guilty of committing the same crimes he as a child had suffered himself. However, as this case was the first and so far, only one, of its kind, there are only few definitive conclusions that can be drawn. The importance of considering the long-term consequences former victims of human trafficking may suffer from should nonetheless be considered when assessing criminal liability. This requires that the victims are correctly identified as victims of human trafficking by a competent authority and that this assessment is duly noted during throughout the various legal and social processes that may follow.