Non-liability in European and International Law
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This chapter sets out the existing provisions on non-liability as found in European and international law. The chapter will present the text of Article 26 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings and Article 8 of the Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims, which are then dissected in subsequent chapters.
This chapter sets out the existing provisions on non-liability as found in European and international law. The chapter will present the text of Article 26 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings and Article 8 of the Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims , which are then dissected in subsequent chapters.
The European legal regime is probably the most forward-looking and progressive system in the world with regard to protecting trafficked persons. However, it will be interesting to see what the Australian Modern Slavery Act and The Honk Kong anti-slavery law will look like. The European frameworks are also far reaching; the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings has been ratified by nearly all member states and all European Union (EU) member states.
Whilst Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims and the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings have features in common, they are not identical. This will be highlighted in this and subsequent chapters. Regrettably, neither document has a Travaux Préparatoires, which we can refer to, to understand the negotiations that preceded the agreement of each article. However, with respect to the Council of Europe Convention on Action Against Trafficking in Human Being there are some documents we can rely on to gain a bit of a historical perspective. The Council of Europe’s Committee of Ministers had mandated the Ad hoc committee on action against trafficking in human beings, (known as CAHTEH) to prepare the text for the Convention; this took place in steps with multiple drafts. Fortunately, we are able to access the various revised drafts of the Convention.
Along with presenting the European law, the chapter will provide readers with knowledge on aspects of international law that do, or as in the case of the UN Palermo Protocol do not, address the non-liability principle for trafficked persons. Subsequently, the chapter will draw parallels with other similar provisions such as Article 31(1) of Refugee Convention and Article 31(d) of the Rome Statue (dealing with duress). Lastly, the chapter looks at how the law is currently protecting victims of other crimes who are committing crimes, specifically victims of domestic violence and child soldiers.
Article 26 of the 2005 Council of Europe Convention
Article 26 of the 2005 Council of Europe Convention and Its Drafting
As mentioned in the introduction, no Travaux Préparatoires is available with respect to the drafting process of the Council of Europe Convention on Action Against Trafficking in Human Beings. This is unfortunate for it would have been beneficial for scholars to easily gain insight into what the discussions focused on, what was a point of disagreement or what inspired the provision. It is possible, however, to make an informed guess as to why Article 26 came about. Firstly, as is shown below at the time of drafting the Convention there was a deficiency in terms of hard law and binding responsibility. The UN Palermo Protocol does not make any obligations on states in terms of non-liability. There was, however, since the adoption of the UN Palermo Protocol, a developing acceptance of the importance of such a principle. For instance, the UNODC Model Law 2009, which was drafted to deliver guidance on how trafficking laws can be implemented at a domestic level, includes Article 10 entitled non-liability of victims of trafficking in persons. 1 Below we come back to further soft law 2 provisions that were developed post the UN Palermo Protocol, the key point for now is that there was a growing recognition that trafficked persons are compelled to commit crimes and a recognition that they ought to be protected from prosecution and punishment. Against this discourse, it was only natural that European legislators sought to codify the principle. Moreover, this is consistent with Convention’s aim to put a special focus on the human rights of victims of trafficking. The Explanatory Report to the Convention states that the document aims to achieve “a proper balance between matters concerning human rights and prosecution.”
The 2005 Council of Europe Convention on Action Against Trafficking in Human Beings was a fertile answer to the criticisms of the UN document. A suggestion for a Convention was raised in 2002, and although the primarily interest was in women and prostitution, the final version of the document applies to all forms of human trafficking. It was adopted on 3 May 2005 and entered into force on 1 February 2008. Despite there being no Travaux Préparatoires, researchers will find of interest the publicly available documents from the Ad hoc committee on action against trafficking in human beings (CAHTEH). This includes the various versions of the Revised draft Council of Europe Convention on action against trafficking in human beings (2004). The mandate given to CAHTEH required that, in their work, “the CAHTEH put a special focus on the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, take into account gender equality aspects, as well as on the effective prevention, investigation, prosecution and on international cooperation and improve on the protection afforded within the Palermo Protocol” (Amnesty International and Anti-slavery 2004). The mandate also included drafting a provision that would protect trafficked persons again being held liable (now contained in Article 26 of the Convention).
In February 2004, following the 3rd meeting, CAHTEH proposed the following version of Article 26:
Article 26—Non-punishment clause
Each Party shall provide in its internal law for victims a non-punishment clause for violation of immigration laws or for the illegal acts they are usually involved in as a direct consequence of their situation as victims, such as illegal border crossing, illegal stay in the territory, use of forged documents, destruction, falsification and alteration of documents, illegal employment.
By July 2004, following the 5th meeting, this protective wording had changed and CAHTEH proposed three versions of Article 26:
Each Party shall provide in its internal law for the possibility of not punishing victims for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as victims.
Each Party shall ensure in its internal law that victims are not punished for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as victims.
Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.
Option one was the least protecting, option two was in the middle, and option three was most protective as it expressly prohibited more than just punishment. Such an option it was argued by NGOs (e.g. La Strada International and the Church’s Commission for Migrants in Europe) avoided discrimination and best avoided the criminalisation of trafficked persons. In the light of the three options, Amnesty International and Anti-Slavery International urged CAHTEH to adopt a modified version Option 3, which they suggested should read as follows:
Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry, into or residence in countries of transit or destination, or for their involvement in any unlawful activities that are a direct consequence of their situation as a trafficked persons.
Each Party shall ensure that all authorities who are likely to come into contact with trafficked persons, (including police, immigration officials, members of judiciary, lawyers (including prosecutors), NGOs, doctors, social service professionals labour inspectors), are adequately trained and sensitised about this Article and the status and needs of trafficked persons as victims of human rights abuses and crime. Particular attention shall be paid to the special needs of children and other vulnerable groups.
By the time of the 6th CAHTEH meeting, two options remained:
Each Party shall, in accordance with the basic principles of its national legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so, as a direct consequence of their situation as victim.
Each Party shall, under the conditions provided by its internal law, ensure that no penalty is imposed on victims for their involvement in unlawful activities when they have been compelled to do so by their situation as victims.
On reading the revised options, it would appear that the urges of NGOs had been disregarded, and in fact, the degree of protection offered to victims had regressed. The Article started with an obligatory wording of “shall provide” and moved towards more discretionary options of “ensuring” “providing possibilities” in accordance with the basic principles of its national legal system. This weakened language found its way into the final version of the article (see below). However, some progress was made. The final version regards victims who have been compelled rather than just victims who breached laws “as a direct consequence of their situation as victim”; as discussed in this chapter and chapter 5, relying on compulsion as a criteria allows a wider net of victims to benefit from the protective measure.
The Content of Article 26 of the 2005 Council of Europe Convention
Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.
The Explanatory Report to the Convention (2005: para. 273–274) clarifies that: “In particular, the requirement that victims have been compelled to be involved in unlawful activities shall be understood as comprising, at a minimum, victims that have been subject to any of the illicit means referred to in Article 4, when such involvement results from compulsion. Each Party can comply with the obligation established in Article 26, by providing for a substantive criminal or procedural criminal law provision, or any other measure, allowing for the possibility of not punishing victims when the above mentioned legal requirements are met, in accordance with the basic principles of every national legal system.”
The Article is scrutinised in detail in the next chapter.
Article 8 of the 2011 EU Directive on Human Trafficking
Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.
Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, 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.
Although subsequent chapters will dichotomise the two European provisions, it is important to already emphasise that the protection is not conditional on the type of crime. In other words, it does not matter if the trafficked persons committed a migration offence, grievous bodily harm or shoplifting, provided they can show compulsion and a relation to their trafficking situation they ought to be protected. The emphasis is thus on the victims, rather than their offence. This goes back to the reason for having the principle of non-liability in the first place and acknowledges that “when an individual’s free will has been overcome, he is not focusing on what crime he is being asked to commit; he is not focused on anything except responding to the free will destroying threat that has been levelled against him. Whether or not an individual’s free will has been overcome is not necessarily dependent on what crime he is being asked to commit. Coerced individuals are not free actors and as such they act without moral culpability” (Risacher 2014: 1408).
Non-liability in International Law
Turning our attention to international law and soft law, the most logical place to start is the, mentioned in chapter 1, UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. It was the first international instrument addressing state obligations vis-à-vis the crime of human trafficking. In the 2000 UN Protocol on Human Trafficking, there is no provision that mirrors Article 8 of the Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims or Article 26 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings. However, it is interesting to note that countries were encouraged to include some version of a non-liability clause within the 2000 UN Protocol but they opted not to. According to Gallagher (2010: 282), this renders any claim that non-liability is implied in the document rather weak.
Nevertheless, the inclusion of the phrase “by means of the threat or use of force or other forms of coercion” in the definition is important, for it is a basis and the ethos for the later developed principles of non-liability for trafficked persons. Indeed, the two European articles (mentioned above) incorporate the underlying logic of the definition of human trafficking. Victims are subjected to various means that result in their will and responsibility being capitulated. The non-liability clause is thus a justifiable progression from the means element of the definition.
Hoshi (2013) notes that “the absence of a binding non-criminalisation provision in international law is significant because it means that there is no unified vision to which regional and national legislators may (or must) adhere.” This is not necessarily true, for we do note other sources of international law that concern the non-liability principle. Indeed, the UN body was quick after the Protocol to recognise the importance of supporting the principle of non-liability. The 2001 United Nations General Assembly Resolution on Traffic in Women and Girls is the earliest international legal document that asks states to ensure that the victims of human trafficking are not penalised. Following suite, in 2002 a version of the principle was asserted within the UN Recommended Principle and Guidelines on Human Rights and Human Trafficking (2002; Principle 7), which states: “Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.” The Commentary to the Recommended Principles and Guidelines on Human Rights and Human Trafficking (2010: 130) validates the importance of the principle by saying the issue is given “given particular and detailed consideration owing to the prevalence of this practice and its serious implications for the rights of trafficked persons, in particular, women and children.” In addition, we ought to also acknowledge the principle with respect to children; here, the UN OHCR Guideline 8.3 adopts a wider approach, and conditions that “there is an obligation to ensure that children who are victims of trafficking are not subjected to criminal procedures or sanctions for offences related to their situation as trafficked persons.”
Likewise, in 2002 The Organisation for Security and Co-operation in Europe (OSCE) Ministerial Council Declaration on Trafficking in Human Beings stated that “Trafficked victims must be recognised as victims of serious crime. Therefore they should not be re-victimised, further stigmatised, criminalised, prosecuted or held in detention centres for offences that may have been committed by the victim as part of the trafficking process.” The 2014 ILO Forced Labour Protocol also includes a non-liability clause at Article 4: “Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.” Piotrowicz and Sorrentino are right to point out that the obligation found in the ILO is unique when compared to the other documents, for it specifically focuses on forced labour. The ILO Convention thus “explicitly acknowledges that victims of forced labour may involuntarily commit a range of offences as a direct result of their forced labour status. This clause is also important from the perspective of avoiding discriminatory treatment of victims of forced labour versus victims of trafficking - effectively prescribing equality of treatment for both” (Piotrowicz and Sorrentino 2016: 174).
Soft law and communications regarding the non-liability of trafficked persons principle
UN General Assembly, “Trafficking in Women and Girls” UN Doc A/RES/63/156, 30 January 2009, at Paragraph 12
Urges Governments to take all appropriate measures to ensure that victims of trafficking are not penalized for being trafficked and that they do not suffer from revictimization as a result of actions taken by government authorities, and encourages Governments to prevent, within their legal framework and in accordance with national policies, victims of trafficking in persons from being prosecuted for their illegal entry or residence
UN Human Rights Council, “Trafficking in Persons, Especially Women and Children,” UN Doc. A/HRC/RES/11/3, 17 June 2009, at Paragraph 3(e)
Urges Governments To take all appropriate measures to ensure that victims of trafficking are not penalized for being trafficked and that they do not suffer from revictimization as a result of actions taken by Government authorities, bearing in mind that they are victims of exploitation, and encourages Governments to provide trafficked persons with access to specialized support and assistance, regardless of their immigration status
“Trafficking in Women and Girls: Report of the Secretary-General,” UN Doc. A/63/215, 4th August 2008, at Paragraph 62
…Victims should be protected from re-victimisation, including protection from prosecution for illegal migration, labour law violations or other acts
UN Committee on the Rights of the Child, “Concluding Observations: Kenya” UN Doc. CRC/C/KEN/CO/2, 19 June 2007, at Paragraph 66
The Committee recommends that the State party:
(b) Prevent the criminalization of child victims of sexual exploitation;
UN Committee on the Elimination of Discrimination Against Women: “Concluding Observations: Lebanon,” UN Doc. CEDAW/C/LBN/CO/3, 1st February 2008, Paragraphs 28–29
… It is further concerned that women and girls who have been trafficked for the purpose of sexual exploitation and forced domestic labour may be prosecuted and penalized under immigration laws and are therefore subject to revictimization
UN Committee on the Elimination of Discrimination Against Women: “Concluding Observations: Singapore,” UN Doc. CEDAW/C/SGP/CO/3, 10th August 2007, at Paragraphs 21–22
The Committee is concerned at the narrow definition of trafficking employed by the State party. It is further concerned that women and girls who have been trafficked may be punished for violation of immigration laws and be treated as offenders rather than victims
“Further Actions and Initiatives to Implement the Beijing Declaration and Platform for Action,” UN DOC. A/RES/S-23/3, 16th November 2000, at Paragraph 70
Consider preventing, within the legal framework and in accordance with national policies, victims of trafficking, in particular women and girls, from being prosecuted for their illegal entry or residence, taking into account that they are victims of exploitation
European Union and African States, “Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women and Children,” adopted by the Ministerial Conference on Migration and Development, 22–23 November 2006
Adopt specific measures to avoid criminalisation of victims of trafficking, as well as stigmatisation and the risk of re-victimisation
Organisation for Security and Co-operation in Europe (OSCE) Ministerial Council, “Declaration on Trafficking in Human Beings,” OSCE Doc. MC(10). Jour/2, Annex II, 7th December 2002, at 3, Section II
We will strive to render assistance and protection to the victims of trafficking, especially women and children, and to this end, when appropriate, to establish effective and inclusive national referral mechanisms, ensuring that victims of trafficking do not face prosecution solely because they have been trafficked…
UNODC Model Law, Article 10
1. A victim of trafficking in persons shall not be held criminally or administratively liable [punished] [inappropriately incarcerated, fined or otherwise penalized] for offences [unlawful acts] committed by them, to the extent that such involvement is a direct consequence of their situation as trafficked persons
2. A victim of trafficking in persons shall not be held criminally or administratively liable for immigration offences established under national law
3. The provisions of this article shall be without prejudice to general defences available at law to the victim
4. The provisions of this article shall not apply where the crime is of a particularly serious nature as defined under national law
This section has presented the numerous hard and soft law provisions that place a duty on states not to hold victims of human trafficking liable for offences related to their trafficking situation. Yet, it is important to emphasise that none of the provisions grant blanket immunity. Indeed, the preamble to the 2011 EU Directive at paragraph 14 states that: “This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in.” The use of the word “voluntarily” goes to the heart of what the principle seeks to address. Thus, although when “a person has been trafficked, there is a good likelihood that they are not responsible because they are not acting with free will” (Piotrowicz and Sorrentino 2016: 693), it is not always the case that a trafficked person should be given immunity from liability on the sole basis that they were victims of human trafficking. This author has volunteered in a safe house where she has come across victims who commit crimes, usually battery or theft, the same however is not connected to having been trafficked. 3 It would thus be unjust to exempt them from responsibility.
Relation to Similar Provisions
The non-liability principle can be said to have joined a small albeit accepted family of provisions in international law that seek to provide an excuse for those who may have committed a wrong. Provisions once monopolised by national law, in particular criminal law, are now spilling out beyond; an example of this is Article 31(d) of the Rome Statue . The Article states that a person shall not be criminally responsible if, at the time of that person’s conduct the crime was “caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided.” The provision excludes liability as to crimes within the jurisdiction of the International Criminal Court, namely war crimes, crimes against humanity and genocide. Of course, this article will not be much help to victims of trafficking, for they are far more likely to be victims than perpetrators of the offences covered by the Rome Statue. However, it is interesting to note that Article 31(d) allows full exonerations, even in the case of the most serious crimes. When discussing the non-liability provision, particularly in the context of domestic law, arguments can be heard that the provision needs to be limited and ought not to provide protection to those who committed serious offences. In some way, echoing the philosophy of Blackstone (2007, 1447) who explicitly stated that a man under duress “ought rather to die himself, than escape by the murder of an innocent.”
Recently, this is exemplified in Section 45 of the Modern Slavery Act, in England and Wales, which states that the defence for slavery or trafficking victims who commit an offence does not apply to an offence listed in Schedule 4. Schedule 4 is made up of 37 paragraphs and includes crimes such as robbery, burglary, manslaughter, murder, offences against the person (e.g. threats to kill, wounding with intent to cause grievous bodily harm, abandoning children), assisting unlawful immigration and sexual offences, to name but a few examples. The Modern Slavery Act and indeed many discussions around the non-liability provision do not reflect the ethos of Article 31(d) of the Rome Statue , and whilst it may be a hard pill to swallow that one ought to be excused for committing a serious offence, it is now in fact the case that international allow makes allowances when one’s autonomy is compromised. This follows the civil law approach, contrasted with the common law, where “the general theme of the civil law countries regarding duress is whether or not the free will of the actor has been overcome” (Risacher 2014: 1408).
It is also interesting to note that earlier in history the International Criminal Tribunal for the Former Yugoslavia took a different viewpoint. In the case of Erdemovic (1997), the Tribunal held (by a majority) that: “[D]uress does not afford a complete defence to a soldier charged with a crime against humanity and/or a war crime involving the killing of innocent human beings.” Yet by the time of the Rome Statue of the International Criminal Court, which came into force in 2002, the perception had changed. Potentially showing the maturing of the general understanding of how a person’s autonomy can be curbed and an acknowledgement that there is a possibility of a suppression of freedom and autonomy, thus affecting the mens rea of the culprit. However, apparently it is also true that the drafters spent little time on the matter. N:B The defence enclosed in the Rome Statue is not perfect (Risacher 2014), but it is an important recognition of the role that moral culpability plays.
Article 31(1) of Refugee Convention (1951) is another example of an international law provision on non-liability; it obliges member states not to impose penalties on refugees on account of their irregular presence. The provision reads: “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” As this Article is from 1951, it is one of the first international precedents of an obligation not to use domestic law to sanction individuals who have a special status and require protection. There is commonality between Article 31(1) of Refugee Convention and the non-liability provision as found in the European texts that are discussed in this book. For one, both form a key part of a wider commitment to protect the subjects and ensure they have access to their rights, in the case of the Refugee Convention that right concerns asylum. Secondly, both refugees and victims of trafficking are forced, by measures outside of their control, to undertake an act which is unlawful. Trafficked victims are compelled to commit crimes, whilst refugees are forced by a situation at home to undertake irregular journeys and illegal border crossings, which themselves are a product of the voluminous measures obstructing access to asylum. However, and this will be discussed in subsequent chapters, it is clear that Article 31(1) of Refugee Convention is stricter on states. Its language of “shall not impose penalties” makes a stark contrast again the weak wording of the European document which read that “Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure…” The margin of appreciation afford in cases of victims of trafficking is far wider than when it comes to refugees.
Beyond the Refugee Convention and Rome Statue, there is another analogous notion, as found in the UN Smuggling Protocol at Article 5, which provides that migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of the conduct of smuggling.
Defences for Other Special Category Victims
Victims of human trafficking are not the only special category of subjects who are caught in the dichotomy of a victim-offender status. In this section, we look at two other victims: those in abusive relationships and child soldiers.
Comparison with Persons in Abusive Relationships
There are parallels to be drawn between victims of human trafficking and victims of domestic violence. Notions of voice, agency and blame are inherent to both groups. There are other similarities between the situation of trafficked persons and those trapped in abusive relationships: the experience of physical and/or psychological harm, intimidation, blackmail, exploitation, the feeling on entrapment without a way out. Both trafficked persons and victims of domestic abuse also experience a dichotomy of agency. In both cases, it would be wrong to say that they had no physical choice; rarely are they tied down. Rather it is a case that their choice is a product of the coerced situation they find themselves in. “Women abused by their partners are not usually physically restricted and prevented from leaving the home, but they are none the less controlled. They have limited access to money, to support networks – including family and friend, and they are threatened that if they try to leave they will be found and subjected to further, usually more serious violence” (Hoyle et al. 2011: 323). The same is true of trafficked persons.
There is also another overlap, committing an offence. Victims of human trafficking and those in an abusive relationship can experience a feeling of no choice, but to resort to a breach of the law. For victims of human trafficking, it may be an immigration offence, cultivating drugs or causing harm to their trafficker. For a person in an abusive relationship, this may be grievous bodily harm to their partner or even homicide. For both victims, relying on traditional defences has not always ended in a success. Consequently, securing fair outcomes for battered persons or victims of human trafficking who were compelled to commit a crime required an evolution beyond traditional defence law.
For those in abusive relationship, the revolution came with the Canadian case of Lavalle ( 1 SCR 852)—where an abused woman shot her abusing partner—here, the law recognised the “battered woman syndrome” and the fact that victims may resort to a crime of violence instead of leaving a relationship. As summarised by Sheehy: “[F]irst, the Court held that the lack of ‘imminent’ harm posed by the threatened would no longer bar self-defence (R v Lavallee  1 SCR 852: 883). Second, the Court clarified that the right to self-defence does not impose a ‘duty to retreat’ before using lethal force (R v Lavallee  1 SCR 852: 890). Third, the Court ruled that ‘Battered Women Syndrome’ evidence may be used to dispel erroneous but widely held misconceptions about wife battering and to show the reasonableness of a women’s beliefs regarding the danger she faced and her options (R v Lavallee  1 SCR 852: 890)” (Sheehy 2016: 82). This judgement and subsequent battered woman rhetoric perfectly understand the ethos that also lies at the heart of the non-liability principle for trafficked persons. In the context of narratives that defy agency, we need more than the traditional defences for they do not accommodate the nuances surrounding these types of breaches of law. The compulsion experienced by trafficked persons and the coercion, fear and level of abuse felt by those in an abusive relationship cannot always be excused or justified by reference to, e.g., self-defence or duress. As rightly summarised by Clough (2016: 280) with regard to battered women: “[T]heir plight would mostly fall short of the rules of self-defence, because battered women who kill their abuser tend to act when no immediate physical threat is present. Diminished responsibility would deem them irrational beings, which is an erroneous label to apply to such situations.”
Against this background, it is interesting to note the changes happening in legislation. For instance in Australia, Queensland created a partial defence for battered women who commit homicide for self-preservation, introduced by Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010. In England and Wales, the debates around a defence of battered persons found some reflection in the Coroners and Justice Act 2009, where the defence of provocation has been transformed into a loss of control defence. “Up until this reform, the emphasis of the defence of provocation had been on anger leading a person to loose their control because of things said or done. Now, the emotion of fear as well as anger can be the basis for the new defence of loss of control. A key reason for introducing this reform was to achieve justice for battered women who killed their abusive partners” (Elliott 2015: 231).
Duress is often cited as the domestic law equivalent of the non-liability principle. However, it is problematic for victims of human trafficking on similar grounds for why it is challenging for battered persons. Duress in its multiple requirements includes showing that the threat was unavoidable, that there were no feasible alternatives. Pham’s work is particularly interesting for the purpose of this book. In the context of the Domestic Violence, Crime and Victims Act 2004, she looks at why victims of domestic violence do not leave. A question that is often asked of trafficked persons, including those who are forced to commit crimes. She analyses the Domestic Violence, Crime and Victims Act 2004 and S.5 of the act, which criminalised “causing or allowing the death or a child or vulnerable adult.” In her argument Pham (2015: 9) notes that it is too simplistic to imagine that victims of domestic violence would leave their house or call the police when their violent partner kills a vulnerable member of their household. The same can be said of trafficked person. They may see no realistic alternative. Similar understanding of the difficulty in leaving needs to be extended to trafficked cases.
It is easy to expect victims to run away from their traffickers, but we must pay attention to how they perceive possibilities of running to safety. If they believe that on running away they will be deported or harmed by the authorities or that they will become injured due to a juju curse, then is it so realistic to expect them to runway? As highlighted by Schloenhardt and Markey-Towler (2016: 23): “traffickers tell their victims that the authorities will not assist victims, will punish them, and that officials are corrupt and cannot be trusted. These statements by the traffickers serve to frighten the victims and prevent them from making any attempts to escape.” Like in cases of domestic violence, even though physically the victims may be able to escape, there may be an array of other reasons which means they do not. In addition, we have to also take into account that there may be practical obstacles, not knowing where they are, language barriers, lack of information sources and questions of how to survive economically. Furthermore, some victims may fear that the traffickers know where their families live and would harm them. The expectation of a realistic alternative may be alien to trafficked persons.
Child soldiers exhibit another example of a victim-offender intersection. Recruited through force, deceit or other means, they are also subjected to harmful substances and psychological and/or physical violence. They are then required to commit crimes, including the most heinous atrocities such as taking part in genocide. “The vulnerability of child soldier members of State and non-State armed forces that commit systematic grave IHL violations is manifest daily in the severely harsh treatment that these child soldiers endure during training and once engaged in the hostilities by their own side…” (Grover 2012: 88). To protect these children from prosecution, the Rome Statute of the International Criminal Court sets the minimum age of criminal culpability at 18; Article 26 states that the court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime. This follows a history of other courts, such as the ICTR, not investigating or prosecuting children despite the fact that many were detained on suspicion of participation in the Rwanda genocide. Article 26 as observed by Grover “obviates the necessity for each individual child defendant making out a case for his or her lack of culpability under Article 31 of the Rome Statute (concerning the defence of duress or in regards to the issue of the mental element of the crime). The latter fact highlights the point that the drafters of the Rome Statute did not wish to leave the outcome (whether or not a particular individual who perpetrated the international crime(s) when he or she was under age 18 would be found to have mounted a successful defence under Article 31 of the Rome Statute) to the vagaries of judicial process and the particularities of who constituted the judicial panel at each stage of the proceedings. Article 26 eliminated that concern by incorporating an age-based exclusion of ICC jurisdiction based in substantive principles of criminal law” (2012: 87).
Child soldiers, like trafficked persons, act under a level of compulsion. Their actions are not truly theirs. Child soldiers however have an additional reason for why they ought not to be held liable and that is the fact that their age obviates them from forming the necessary mens rea . In cases of the crime of genocide, it is argued that a child will not and cannot form the required intentions of eliminating part or all of an ethnic group.
This section aimed to show that child soldiers have their own unique pathway to non-liability with regard to crimes committed over which the Rome Statue has jurisdiction. However, it is important to note that the odious but widespread use of children as soldiers is in fact a manifestation of human trafficking. As the individuals in questions are children, they only need to fulfil two of the three elements of the trafficking definitions: the act and the intent of exploitation, both which can always be established in cases of child soldiers.
In both domestic law and international law, we find provisions that protect individuals who although are victims also commit crimes. Child soldiers, refugees, those subjected to violence in a relationship often come to the attention of the authorities firstly as offenders. Yet, their experiences and vulnerabilities mean they should fall within the protective scope of the state’s actions. Consequently, the law tries to refrain from perceiving them solely as an offender, which would erase their victimhood and thus access to the special rights and assistance they may need.
There are thus provisions examined in this chapter that protect a special category of persons (e.g. children) or persons who find themselves in particular circumstances (e.g. loss of control as in the case of those in abusive relationships). Since 2005, we can add to these legal provisions the non-liability principle for trafficked persons. The question afore us however is whether the protection contained in the European trafficking framework is efficient. We now turn this question.
- 1.Article 10 states:
A victim of trafficking in persons shall not be held criminally or administratively liable [punished] [inappropriately incarcerated, fined or otherwise penalised] for offences [unlawful acts] committed by them, to the extent that such involvement is a direct consequence of their situation as trafficked persons.
A victim of trafficking in persons shall not be held criminally or administratively liable for immigration offences established under national law.
The provisions of this article shall be without prejudice to general defences available at law to the victim.
The provisions of this article shall not apply where the crime is of a particularly serious nature as defined under national law.
The term soft law regards normative instruments developed by states or intergovernmental organisations that lack full legal force.
The author has volunteered for over 32 months in a safe house for victims of human trafficking in Manchester. In the course, she has met over 50 victims.
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