The obligations placed on States by the Protocol against Trafficking in Persons, particularly those under article 5, necessitate the use of domestic criminal justice systems and measures to prevent and combat trafficking. Those persons that commit the crime of trafficking in persons, as defined in the Protocol, must be subject to criminal offences under domestic law. In this way, criminal justice systems are responsive to trafficking, insofar as they are the avenue through which those offenders can be punished. However, criminal justice systems can also play an effective, pre-emptive, role in responding to trafficking, by preventing further commission of the crime and reducing overall levels of offending. Prevention is one of the purposes of the Protocol against Trafficking in Persons.
Importantly, insofar as criminal justice systems play a role in combatting and preventing trafficking in persons, this role must be implemented in a way that takes into account the protection needs of victims and fully respects their human rights. Criminal justice and human rights-based approaches to trafficking must be seen as complementary and mutually reinforcing. The rights of victims are explored below.
Put simply, trafficking in persons is a crime committed by offenders. As such, an appropriate and effective response to prevent trafficking is the prosecution and punishment of offenders. This has the dual effect of removing offenders from the community and deterring others from committing the crime. The primary motivation of offenders is often to profit from the exploitation of their victims. If they are exposed to the significant and timely risk of prosecution, lengthy jail sentences and forfeiture of their profits, this contributes to a reduction in the incidence of offending.
The role of the criminal justice system in combatting trafficking in persons is acknowledged by Governments, United Nations agencies, NGOs and academics, and is supported by established principles of criminology. For example, in its 2014 Global Report on Trafficking in Persons, UNODC (2014a) stated that:
"It is equally clear that without robust criminal justice responses, human trafficking will remain a low-risk, high profit activity for criminals."
Similarly, in its 2016 Global Report on Trafficking in Persons, UNODC (2016) observed:
"Unfortunately, the average number of convictions remains low. UNODC's findings show that there is a close correlation between the length of time the trafficking law has been on the statute books and the conviction rate. This is a sign that it takes time, as well as resources, and expertise to chase down the criminals. Perhaps the 2016 Report's main message is that inroads have been made into this horrendous crime. We must, however, continue to generate much needed cooperation and collaboration at the international level, and the necessary law enforcement skills at the national and regional levels to detect, investigate and successfully prosecute cases of trafficking in persons".
Findings from the 2018 Global Report on Trafficking in Persons also confirm a correlation between increased institutional responses with an increase in number of convictions (UNODC, 2018).
The Human Rights First 2017 report entitled "How to Disrupt the Business of Human Trafficking" highlights:
"A shift must occur to change the equation for traffickers. The focus must be on disrupting the business of human trafficking. Experts agree that human trafficking must be fought on several fronts, including providing more reliable data, improving prosecutions, increasing the cost and risk of trafficking to the perpetrators and enablers, strengthening partnerships with allies in private industry ... Prosecutions of human trafficking must target all individuals involved in this criminal business. Law enforcement and prosecutors must achieve this objective by employing enhanced expertise, adopting a victim-centred approach, and with increased access to tools enhancing investigations and prosecutions".
Deterrence is traditionally a central component of criminal punishment, achieved through the imposition of penalties on offenders. In the context of trafficking in persons, the goal is to deter both the offender from future offending, as well as the general population from commission of the crime (referred to respectively as "specific" and "general" deterrence) (see Beyleveld, 1979 for an overview of the concept). Deterrence is just one of several common objectives for the punishment of criminal offenders. Others include:
By way of example, section 142 of the United Kingdom Criminal Justice Act 2003 provides:
Purposes of sentencing
(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing:
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
Nonetheless, the efficacy of deterrence, both specific and general, has been extensively questioned by experts. It is a controversial topic and often the subject of considerable disagreement (see, eg, Bagaric and Alexander, 2012). In particular, the effectiveness of harsher punishments on future offending has been frequently tested and questioned.
Rather than a narrow focus on deterrence and punishment, criminal justice responses to trafficking in persons should ideally encompass a broader range of crime prevention strategies. These include approaches designed to strengthen communities and address structural factors that lead to trafficking. Such factors include socio-economic deprivation, inequality, conflict and post-conflict settings, discrimination and persecution. This accords with the UN's Sustainable Development Goal 16, which calls for the promotion of peaceful and inclusive societies, access to justice for all, and accountable and inclusive institutions.
States' criminal justice systems encompass a broad range of actors and institutions. This section gives an overview of the roles of some key criminal justice actors involved in the prosecution of traffickers, including prosecutors, defense lawyers, police and the judiciary. Police forces also play an important role in crime prevention.
The responsibilities of prosecutors in relation to victims include (UNODC, 2014b; Council of Europe, 2017):
It is the role of defence lawyers to represent the accused before, during and after a trial, to conduct a competent defence and to protect the accused's rights under law. This includes seeking bail for their clients, where appropriate, and conducting their defence at trial and making a plea of mitigation at any sentencing hearing. As such, they will have the opportunity to cross-examine the victim and call evidence from other witnesses.
Although the defence counsel may conduct a robust cross-examination, he/she is not allowed to harass the witness or act in an overbearing, disrespectful or unfair manner (United Nations Congress on the Prevention of Crime and the Treatment of Offender, 1990). At all times, court proceedings must be conducted in a fair, humane and accountable manner cognisant of both the victim's and the accused's rights (see SDG 16 and the Preamble of the Doha Declaration).
The responsibilities of police in relation to the trial include presenting evidence for the prosecution, managing the security/protection of victims and other prosecution witnesses, and controlling offenders that are held in custody, including:
The responsibility of judges is to manage the criminal trial to ensure that it is just, fair and carried out in accordance with the law. If they fail to do so they risk an unfair trial, with the result that there may need to be a second trial at which victims will need to repeat their evidence. Alternatively, traffickers may go free where there is a successful appeal or no further prosecution following a mistrial. Judges have several duties, including:
When trafficking offenders are prosecuted and found guilty, they should be punished appropriately by the State. Punishment is important as it shows that society disapproves of the conduct. While domestic anti-trafficking legislation should prescribe heavy penalties for trafficking in persons, concomitant with the seriousness of the crime, it may also provide for higher sentences where the accused's position or particularly egregious offending calls for them. Such aggravating circumstances can be divided into three general groups, depending on whether they pertain to the trafficking offender, the victim of trafficking or the act of trafficking itself (UNODC, 2008, pp. 43-44). Examples that may be found in domestic legislation include: