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 73