1.5. THE CRITICAL IMPORTANCE OF RAPID
AND ACCURATE VICTIM IDENTIFICATION109
The chapeau to Guideline 2 explains why
identification of victims is so important and why it
is an obligation:
A failure to identify a trafficked person
correctly is likely to result in a further denial of
that person’s rights. States are therefore under
an obligation to ensure that such identification
can and does take place.
Why would a failure to identify trafficked persons
quickly and accurately result in a denial of their
rights? The answer to this lies at the core of the
present Commentary: international law (and the
national law of most countries) now recognizes
that individuals who have been trafficked have
a special status and that the State owes a
particular duty of protection and support to those
persons. If a trafficked person is not identified at
all, or is incorrectly identified as criminal or as
an irregular or smuggled migrant, then this will
directly affect the ability of that person to access
the rights to which she or he is entitled. In short,
failure to quickly and accurately identify victims
of trafficking renders any rights granted to such
persons “purely theoretical and illusory”.110
For a discussion on rapid and accurate victim
identification as a legal obligation, see Gallagher,
International Law of Human Trafficking, chap. 5.
Guideline 2 provides explicit direction on
victim identification. It notes the importance of
written identification tools such as guidelines
and procedures that can be used by police,
border guards, immigration officials and others
involved in the detection, detention, reception
and processing of irregular migrants to permit
the rapid and accurate identification of
individuals who have been trafficked. Guideline
2 further notes the need for cooperation between
the State officials and agencies involved in
identification and for them to be given training
in identification and in the correct application of
agreed guidelines and procedures.111 Guideline
2 also touches upon other issues relating to the
identification and misidentification of victims
including prosecution, detention and asylum.
These matters are taken up in detail at other
points throughout the Commentary.
SEE FURTHER:
• Criminal justice responses to trafficking: part
2.4, sections 12.1-17.6
• Vulnerability to trafficking: part 2.2, sections
5.1-5.7
• Detention of victims of trafficking: part 2.3,
section 7.4
• Treatment of women: part 2.2, section 5.4;
part 2.3, sections 7.4, 8.5
• Treatment of children: part 2.2, section 5.5;
part 2.3, sections 7.4, 8.5, 10.1-10.4
109
Explanatory Report on the European Trafficking
Convention, para. 131. Note that this issue was recently
raised in the context of the Committee on the Elimination
of Discrimination against Women’s consideration
of a communication under the Optional Protocol to
the Convention on the Elimination of All Forms of
Discrimination against Women. While the communication
was ultimately dismissed on the grounds that the
complainant had failed to exhaust the available domestic
110
remedies, a dissenting opinion issued by three members
of the Committee pointed to an obligation on the State
party under the Trafficking Protocol to exercise due
diligence in identifying potential victims of trafficking and
informing them of their rights. The dissent recommended
that the State party should take measures to ensure that
law enforcement officials were appropriately trained to
interview and recognize trafficked persons at an early
stage. Zhen Zhen Zheng v. Netherlands (CEDAW/
C/42/D/15/2007, especially paragraphs 7-9).
111
See also Guideline 5.7.
COMMENTARY
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