Human Rights Council Starts Interactive Dialogue with the Special Rapporteur on Trafficking in Persons and Concludes Interactive Dialogue with the Special Rapporteur on Violence against Women

29 June 2021

The Human Rights Council this morning began an interactive dialogue with the Special Rapporteur on trafficking in persons, especially women and children, and concluded an interactive dialogue with the Special Rapporteur on violence against women.

Siobhán Mullally, Special Rapporteur on trafficking in persons, especially women and children, presenting her report on the implementation of the non-punishment principle, said the principle of non-punishment of victims of trafficking was critical to the recognition of trafficking in persons as a serious human rights violation. Punishment of a victim marked a rupture with the commitments made by States to recognise the priority of victims' rights to assistance, protection, and to effective remedies. At its core, the non-punishment principle sought to ensure that a victim of trafficking was not punished for unlawful acts committed as a consequence of trafficking. Failure to respect the principle of non-punishment led to further serious human rights violations. Ultimately, punishment hindered the possibility of recovery, and denied access to justice for trafficked persons.

Speakers noted that Governments across countries of origin, transit and destination must work together using a victim-centred approach to human trafficking. The COVID-19 pandemic, and its multi-dimensional effects on States all over the world, had had significant negative impacts on the fight against human trafficking, as well as prevention. The increased use of technology as a result further enabled exploitation, while victims were harder to reach with support services. Speakers agreed with the United Nations Security Council's call that trafficked persons should not be subject to double punishment, and they must not be arrested and prosecuted, or be penalised for being trafficked.

Speaking were Australia on behalf of a group of countries, European Union, Egypt on behalf of the Group of Arab States, Sweden on behalf of a group of countries, Liechtenstein, Paraguay, Sierra Leone, France, Ecuador, United Arab Emirates, Libya, Sovereign Order of Malta, Israel, Germany, Indonesia, Cuba, Spain, Bahrain, Montenegro, Fiji, Iraq, Armenia, China, Malta, India, Morocco, Algeria, Italy, Venezuela, United States, Egypt, Jordan, Greece, Nepal, Saudi Arabia, Malaysia, South Africa, Belarus, Ireland, and Pakistan.

At the beginning of the meeting, the Council concluded its interactive dialogue with the Special Rapporteur on violence against women, Dubravka Šimonović.

Speakers thanked the Special Rapporteur for reminding the Council that international law was unambiguous when it came to rape; there could be no mitigating circumstances. The significant contribution of the Special Rapporteur over the last six years to this important mandate was highlighted by speakers. This sobering report was impressive in terms of the breadth of information it offered on the harrowing issue of rape, making it clear that systematic changes were urgently required in countries all over the world.

In her concluding remarks, Dubravka Šimonović, Special Rapporteur on violence against women, said that from this discussion it was clear that a focus on rape was very important to put on the agenda of the Human Rights Council. It was also essential for States to ratify the Istanbul Convention - the question of pushbacks against the Convention had to be treated in the context of the broader pushbacks against women's rights and human rights in general.

Speaking were Austria, Mauritius, Sudan, Ireland, Peru, Nigeria, Italy, Timor-Leste, Georgia, United Kingdom, Croatia, Afghanistan, Mauritania, Guyana, Thailand, UN Women, Holy See, Russian Federation, Philippines, Marshall Islands, Turkey, Panama, Tunisia, Bangladesh, North Macedonia, Gabon, Republic of Moldova, Albania, Malawi, Denmark, Japan, Cyprus, Bolivia, Yemen, Djibouti, Iran, Democratic People's Republic of Korea, Cambodia, and Ukraine.

The following national human rights institutions and civil society organizations also took the floor: National Human Rights Council of Morocco, Afghan Independent Human Rights Commission, Advocates for Human Rights, Society for Threatened People, International Lesbian and Gay Association,Federatie van Nederlandse Verenigingen tot Integratie Van Homoseksualiteit - COC Nederland, Rutgers, Colombian Commission of Jurists, Action Canada for Population and Development, International Commission of Jurists, Human Rights Now, and Right Livelihood Award Foundation.

The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council's forty-seventh regular session can be found here.

The Council will next meet today at 3 p.m. to continue the interactive dialogue with the Working Group on human rights and transnational corporations and other business enterprises, and hold a panel discussion on the 10th anniversary of the Guiding Principles on Business and Human Rights. The interactive dialogue with the Special Rapporteur on trafficking in persons, especially women and children, will resume on Wednesday, 30 June.

Interactive Dialogue with the Special Rapporteur on Violence against Women

The interactive dialogue with Dubravka Šimonović, Special Rapporteur on violence against women, started on 28 June and a summary can be found here.

Discussion

Speakers thanked the Special Rapporteur on violence against women for reminding the Council that international law was unambiguous when it came to rape; there could be no mitigating circumstances. The significant contribution of the Special Rapporteur over the last six years to this important mandate was highlighted by speakers. This sobering report was impressive in terms of the breadth of information it offered on the harrowing issue of rape, making it clear that systematic changes were urgently required in countries all over the world. Speakers noted that particular challenges existed in occupied territories where international monitoring mechanisms were not present. The report's focus on the importance of lack of consent in the definition of rape was praised by many speakers, who also highlighted a wide variety of national measures being taken to ensure accountability of perpetrators and protect victims. Other speakers disagreed that national criminal legislation should be aligned with unclear "international standards and jurisprudence" - for instance, a clear distinction between sexual violence as a war crime and as a common crime must be made.

Some countries said the Istanbul Convention was being contested within the Council of Europe itself; withdrawal from it should not be interpreted as a step back in fighting violence against women. Pushing back against such criticism, other speakers warned against misinformation about the Convention's purpose which posed a threat to the progress achieved. It was encouraging that a number of States, including several parties to the Istanbul Convention, had included consent as a constitutive element of their legal definition of rape. Greater harmonisation of national standards with international human rights norms would foster accountability. Rape could amount to a war crime, genocide or crime against humanity, speakers emphasised. They pointed out that the report lacked an intersectional perspective and did not address the issue of "corrective rape" perpetrated against lesbian, gay, bisexual and trans women. When rape was being discussed, sex work should not be conflated with trafficking, speakers said.

Concluding Remarks

DUBRAVKA ŠIMONOVIĆ, Special Rapporteur on violence against women, said that from this discussion it was clear that a focus on rape was very important to put on the agenda of the Human Rights Council. It was also essential for States to ratify the Istanbul Convention - the question of pushbacks against the convention had to be treated in the context of the broader pushbacks against women's rights and human rights in general. Regarding the distinction between international human rights law, humanitarian law and criminal law - the evolution of addressing rape over the past decades had made it clear that a movement towards the use of a model law at the international level was taking place.

Interactive Dialogue with the Special Rapporteur on Trafficking in Persons, Especially Women and Children

Report

The Council has before it the report of the Special Rapporteur on trafficking in persons, especially women and children (A/HRC/47/34) on the implementation of the non-punishment principle

Presentation of the Report

SIOBHÁN MULLALLY, Special Rapporteur on trafficking in persons, especially women and children, presenting her report on the implementation of the non-punishment principle, said the principle of non-punishment of victims of trafficking was critical to the recognition of trafficking in persons as a serious human rights violation. Punishment of a victim marked a rupture with the commitments made by States to recognise the priority of victims' rights to assistance, protection, and to effective remedies. At its core, the non-punishment principle sought to ensure that a victim of trafficking was not punished for unlawful acts committed as a consequence of trafficking. Failure to respect the principle of non-punishment led to further serious human rights violations, including detention, forced returns and refoulement, arbitrary deprivation of citizenship, debt burden arising from the imposition of fines, family separation, and unfair trial. Ultimately, punishment hindered the possibility of recovery, and denied access to justice for trafficked persons. Recognising these limits, the Global Compact on Safe, Orderly and Regular Migration called on States to "facilitate access to justice and safe reporting without fear of detention, deportation or penalty". Despite these repeated calls, however, implementation of the non-punishment principle by States was limited and its scope and content contested.

The intersections of gender, race and ethnicity, migration status and poverty, were visible in failures to implement the principle of non-punishment, and in contestation by States as to its status and scope of application. The obligations arising in international human rights law to eliminate direct, indirect and structural racial discrimination were particularly relevant to the application of the non-punishment principle. The range of forms of punishment covered by the non-punishment principle included: exclusion from refugee status or denial of other immigration relief; arbitrary deprivation of nationality; termination of social welfare benefits or denial of social security payments; and refusals of consular assistance or repatriation. The obligation to identify and ensure protection for victims of trafficking was a positive obligation on the State. This obligation was heightened where the victim was a child, and the risks to continued exploitation of a position of vulnerability were great.

Discussion

Speakers noted that Governments across countries of origin, transit and destination must work together using a victim-centred approach to human trafficking. The COVID-19 pandemic, and its multi-dimensional effects on States all over the world, had had significant negative impacts on the fight against human trafficking, as well as prevention. The increased use of technology as a result further enabled exploitation, while victims were harder to reach with support services. Speakers agreed with the United Nations Security Council's call that trafficked persons should not be subject to double punishment, and they must not be arrested and prosecuted, or be penalised for being trafficked. States had the ultimate obligation to ensure that the principle of non-punishment was fully implemented. Trafficking was identified as one of the worst crimes to human dignity, with speakers outlining a raft of legal and policy measures to prevent it, protect victims, and bring traffickers to justice. Modern slavery in Western States as a result of increased trafficking flows was of particular concern.

Urging efforts that were victim-centred and trauma-informed to facilitate victims' recovery and full participation in society, speakers touted measures developed by their governments, such as the creation of rehabilitation funds and victim care mechanisms. Information sharing and capacity building at the international level were key to address trafficking as a transnational organised crime. Recalling that a high-level meeting of the United Nations General Assembly would take place to assess the implementation of the United Nations Global Plan of Action to Combat Trafficking in Human Beings, speakers said it provided an excellent opportunity to critically assess collective work in countering trafficking in persons and to chart actions for the future.

Interim Remarks

SIOBHÁN MULLALLY, Special Rapporteur on trafficking in persons, especially women and children, welcomed the steps already taken by States, including the adoption of guidelines for prosecutors and others who may come into contact with victims of human trafficking, ensuring early identification which was critical to non-punishment. Safe reporting and training frontline professionals were also very welcomed. The report was informed by contributions from a diverse range of stakeholders, and its recommendations were based on examples of best practices. It was important to recognise the broad scope of non-punishment, including actions a trafficked person may commit as a consequence of their trafficking.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2021/06/morning-human-rights-council-starts-interactive-dialogue-special

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