States must be mindful of the potential for coercion, co-option, trafficking,
enslavement, sexual exploitation and harm on joining or being associated with nonstate armed groups, on-line grooming and recruitment for marriage, sexual or household
services or labour for the organization. States must always undertake individualised
assessments pertaining to the specific situation of women and girls, and the specific
risks that they face based on their sex and gender. 43
Specific considerations regarding the implementation of the principle of nonpunishment for victims of trafficking in persons in relation to deprivation of citizenship
and the obligation of non-discrimination
We would like to highlight the State’s legal obligations to assist and protect
victims of trafficking, without discrimination. The OHCHR Recommended Principles
and Guidelines on Human Rights at International Borders provide that measures taken
to address irregular migration or to counter terrorism, human trafficking or migrant
smuggling, should not be discriminatory in purpose or effect, including by subjecting
migrants to profiling on the basis of prohibited grounds. (OHCHR, Recommended
Principles and Guidelines on Human Rights at International Borders 2014). Of
particular relevance, is the State’s obligation to ensure non-punishment of victims of
trafficking in persons. 44 The failure by the State to identify and protect victims of
trafficking, in particular where they are allegedly associated with terrorism, leads to
stigmatisation and punishment in violation of international law. The intersections of
gender, race and ethnicity, migration status and poverty are visible in failures to
implement the principle of non-punishment.
The non-punishment principle is a general principle of law, recognized in
international and regional legal instruments, including the Council of Europe
Convention on Action against Trafficking in Human Beings, article 26, ratified by Your
Excellency’s government on 17 December 2008, as well as in domestic legislation and
in case law of regional and domestic courts. As a principle, it is essential to the object
and purpose of the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations Convention
against Transnational Organized Crime, ratified by your Excellency’s Government on
9 February 2006, namely, to protect and assist victims of trafficking with full respect
for their human rights, and without discrimination. It is also set out in full in the
Principles and Guidelines for Human Rights and Human Trafficking of the Office of
the United Nations High Commissioner for Human Rights (OHCHR). As stated by the
Special Rapporteur on trafficking in persons in her report to the Human Rights Council
in 2021, A/HRC/47/34 States should ensure that the principle of non-punishment is
applied by all relevant domestic authorities, including the police, immigration and
border officials, labour inspectorates and any other law enforcement agency or official,
as soon as there are reasonable grounds to believe that a person has been trafficked, and
for any unlawful activity carried out by a trafficked person as a direct consequence of
their trafficking situation, regardless of the gravity or seriousness of the offence
43
44
See in particular CTED Trends Report on the Gender Dimensions of the Response to Returning Foreign Terrorist
Fighters (2019) and UNDP/ICAN, Invisible Women (2019).
See for example Report of the Secretary-General on conflict-related sexual violence (S/2020/487), para. 15 cited in
the report of the Special Rapporteur on trafficking in persons, especially women and children to the General
Assembly in 2021 on the linkages between trafficking in persons and terrorism, A/76/263, para 13: “The
Secretary-General has reflected that: “women and children formerly associated with violent extremist and terrorist
groups are viewed primarily as ‘affiliates’ rather than victims”
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