Barriers to Identification

Barriers to identification and the Refugee Issues

As published by the UNHCR in relation to Barriers to identification: The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), supplementing the United Nations Convention against Transnational Organized Crime (UN TOC Convention) entered into force on 25 December 2005.10 According to the Protocol:

'Trafficking in persons' shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of theprostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;11

A primary weakness of the Trafficking Protocol is that it does not provide sufficient victim protection mechanisms. This weakness is compounded by a number of other factors, including:

• the confusion that surrounds the respective definitions of trafficking and smuggling, as well as the overlap that exists between the two phenomena, especially when an individual begins as a willing migrant, seeking better opportunities in another country, but becomes a victim of trafficking during transit or upon arrival in the destination country;12

• the time and resource intensive nature of the investigation process required to determine whether a person has been trafficked, as well as the incentive for immigration officials to identify individuals as smuggled migrants rather than as trafficking victims, in view of the weaker responsibilities of states towards the former group;

• the mistaken assumption that trafficking victims may have consented to their exploitation, especially when they are engaged in sex work and other activities that meet with the general disapproval of society;

• the inadequate training provided to law enforcement and immigration officials with respect to the identification and protection of trafficking victims, coupled with the silence of the Trafficking Protocol in relation to the obligations of states in this area;

• a failure to understand that the defensive, uncommunicative and erratic behaviour of individuals may be as a result of the trauma that they have suffered or the fear of reprisals by those responsible for them being trafficked; and,

• the frequency with which a failure to accurately identify trafficking victims leads to immediate deportation or detention, sometimes without due process or legal assistance.