PART 2.1 • Women who have been trafficked or who fear trafficking may be identified as fearing persecution on the basis of their membership of a social group. AGENTS OF PERSECUTION Is it possible for non-State entities, such as traffickers and their accomplices, to inflict harm sufficient to warrant international protection under the refugee regime? While persecution is normally related to action by national authorities, it is now widely accepted that the nature of persecution does not require it to emanate from the State or to be attributable to the State. According to UNHCR, the persecutory acts relevant to the definition of “refugee” can indeed be perpetrated by individuals if they are “knowingly tolerated by the authorities or if they refuse, or prove unable to offer effective protection”.154 The critical factor, therefore, in the view of UNHCR, is not the origin of the persecution but the ability and willingness of the State to protect the individual on his or her return.155 STATE PROTECTION International refugee law provides an alternative to State protection when such protection is unavailable or otherwise inaccessible to the individual in need. A decision as to whether or not the State meets the required standard is therefore an essential aspect of the refugee determination procedure. The question of whether the State is able to protect victims will depend on a range of factors, most importantly whether mechanisms are in place to prevent and combat trafficking and whether such mechanisms are being effectively implemented. The UNHCR Trafficking Guidelines are clear Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, 1979, HCR/IP/4/Eng/REV.1 (1979, re-edited January 2002), para. 65. on the point that: “Where a State fails to take such reasonable steps as are within its competence to prevent trafficking and provide effective protection and assistance to victims, the fear of persecution of the individual is likely to be well-founded” (para. 23). Until recently, it would have been difficult to identify accurately the “reasonable steps” required to meet this standard. However, the developments in international law and policy recounted in this Commentary serve to confirm a growing commonality of understanding on what is required to deal effectively with trafficking. The rights and obligations set out in the Trafficking Protocol, together with those derived from international human rights law, provide especially important guidance in assessing the adequacy of protection and assistance. THE PLACE OF PERSECUTION As noted above, the legal concept of “refugee” requires an individual to be outside her or his country of origin and, owing to a well-founded fear of persecution, to be unable or unwilling to avail herself or himself of the protection of that country.156 UNHCR is clear on the point that the individual does not need to have left the country because of a well-founded fear of persecution. Such a fear (which still needs to relate to the applicant’s country of origin) could arise after that person has left the country. It must, however, relate to the applicant’s country of nationality or habitual residence. An individual who has been internally trafficked, or who fears such trafficking and escapes to another country in search of international protection, would generally be able to establish the required link “between the fear of persecution, the motivation for flight, and the unwillingness to return” (UNHCR Trafficking Guidelines, para. 26). 154 155 90 UNHCR Trafficking Guidelines, para. 21. Even where the harm experienced by a victim of trafficking occurs outside the country of origin, this does not preclude the existence of a well156 Refugee Convention, article 1A(2). RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING