all major legal systems relating to responsibility
and accountability for criminal offences. It
is not intended to confer blanket immunity
on trafficked victims who may commit other
non-status-related crimes with the requisite
level of criminal intent. For example, if a
trafficked person engages in a criminal act
such as robbery, unlawful violence, or even
trafficking,270 then she or he should be subject
to the normal criminal procedure with due
attention to available lawful defences.271 In the
case of a trafficked child implicated in criminal
offences, it is particularly important for due
regard to be paid to the full range of rights and
protections to which they are entitled.
7.4. DETENTION OF TRAFFICKED
PERSONS272
As noted in the introduction to this section,
victims of trafficking are often detained.
The term “detention” is used in this context
in accordance with its accepted meaning
in international law: the condition of “any
person deprived of personal liberty except as
a result of conviction for an offence”.273 It can
therefore cover a wide range of situations in
which victims of trafficking are held in prisons,
police lock-ups, immigration detention facilities,
shelters, child welfare facilities and hospitals.
In the context of trafficking, detention most
It is not uncommon for individuals who have themselves
been trafficked to become implicated in trafficking
operations (for example, as recruiters).
270
Anne Gallagher and Paul Holmes, “Developing an
effective criminal justice response to human trafficking:
lessons from the front line”, International Criminal Justice
Review, vol. 18, No. 3, p. 318.
271
272
This section draws on Gallagher and Pearson, loc. cit.
Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, General Assembly
resolution 43/173, annex.
273
commonly occurs under the following
circumstances:
• Where the victim is not correctly identified
and is detained as an irregular/
undocumented migrant pending deportation;
• Where the victim is identified correctly but is
unwilling or unable to cooperate in criminal
investigations (or her/his cooperation is not
considered useful) and is sent to a detention
centre for immigrants pending deportation;
• Where the victim, correctly or incorrectly
identified, is detained as a result of her or
his engagement in illegal activities such as
prostitution or unauthorized work;
• Where the victim is identified correctly and
is placed in a shelter or other welfare facility
from which she or he is unable to leave.
Common justifications offered for this form of
detention include the need to provide shelter
and support; the need to protect victims
from further harm; and the need to secure
victim cooperation in the investigation and
prosecution of traffickers.
The Trafficking Principles and Guidelines are
explicit on the point that the detention of victims
of trafficking is inappropriate and (implicitly)
illegal. Under their provisions, States are
required to ensure that trafficked persons are not,
under any circumstances, held in immigration
detention centres or other forms of custody
(Guidelines 2.6, 6.1).
Neither the Trafficking Protocol nor the
European Trafficking Convention refers
specifically to the detention of victims of
trafficking. It is therefore important to consider
whether international human rights law offers
any additional guidance on this point. Clearly,
the status of trafficked persons as victims
of crimes and as victims of human rights is
important. If a victim of trafficking is to be
characterized in either of these two ways then
their detention would be appear to be a clear
COMMENTARY
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