Women Trafficking

Women Trafficking

Women Trafficking and the Refugee Issues

As published by the UNHCR in relation to Women Trafficking: While it is difficult to provide a precise number of women trafficked for the purpose of sexual exploitation, there is no question that the estimates are extremely significant. In light of the large numbers of victims and the grave violations of fundamental human rights and freedoms associated with this crime, it is critical to ensure that both international and domestic legal frameworks provide sufficient protection measures to these individuals.

Existing methods of identifying victims of trafficking and referring them to protection procedures are severely deficient, both within international and domestic legal structures. The failure to provide training, guidelines and protocols for State officials most likely to come into contact with victims of trafficking renders legislation addressing victim protection ineffective. The most comprehensive law will serve little purpose if those responsible for enforcing it are insufficiently informed.

In the trafficking context, there is a tension between victim protection and criminal prosecution of traffickers. The requirement for victim participation in prosecutorial matters, found in many domestic temporary systems of protection, as a condition for the receipt of protection is problematic. The assistance of victims in obtaining the necessary evidence to convict traffickers is undoubtedly crucial; however, the conditional nature of the relationship between protection and the victim's role in the investigation and prosecution of traffickers is disconcerting.

Placing greater emphasis on the needs of law enforcement in bringing traffickers to justice, over the needs of the victim, results in exacerbating the already extensive human rights violations suffered by victims of trafficking. Furthermore, the connection between the prosecution of traffickers and victim protection provisions can result in the cessation of victim protection before the need for protection has been eliminated.

Unlike most temporary trafficking visas, asylum law is premised solely on an individual's need for protection. Under asylum law, once an individual is determined to be a refugee, the provision of protection will not end until it is no longer warranted by the circumstances. Protection afforded to refugees is not conditioned on their ability or willingness to assist law enforcement efforts; however this does not mean that asylum protection will provide sufficient protection for women victims of trafficking.

Despite the fact the UNHCR has recognized sex as a defining characteristic of a particular social group within the 1951 Convention, in addition to the adoption of gender guidelines by several national jurisdictions, adjudicators continue to struggle against the idea that women may constitute a particular social group for the purpose of refugee status determinations. The argument that the inclusion of women within this category will somehow make refugee status applicable to all women is unfounded. This would be comparable to arguing that the inclusion of Catholics within the category of religion would result in the eligibility of all Catholics for refugee protection.

This argument fails to credit the additional elements an individual must overcome to qualify as a refugee, including the showing of a well-founded fear of persecution on account of one of the protected grounds and a failure of State protection. Furthermore, while some jurisdictions have recognized women victims of trafficking as refugees, many decisions fail to identify the requisite nexus between particular social group and persecution. This results from a combination of the unwillingness to recognize gender as grounds for persecution and misconceptions regarding acts constituting persecution.

Many adjudicators classify the persecution faced by women in the trafficking context as personal, criminal acts, not amounting to persecution for reason of protected characteristics. In this regard, it is troubling to see the creation of additional barriers to women claiming gender-related persecution not faced by individuals claiming persecution on other grounds; for example, the U.K.'s requirement for generalized discrimination in gender-related persecution cases. As long as women continue to be targeted by traffickers, forced or coerced into sexually exploitative situations and subjected to a failure of State protection, the international community must take responsibility for ensuring that the human rights of these women are protected.

It is also crucial to address the relationship between refugee protection and other forms of protection. The primary focus of State officials on the criminal prosecution of traffickers has the effect of funnelling victims into systems of temporary protection, providing little or no options of permanent protection. Furthermore, a victim may not be sufficiently informed about her ability to apply for asylum when her primary contact is with State officials in the criminal prosecution context. This may also result in a victim's failure to meet requisite filing deadlines for asylum protection. Providing victims with the information and the means to obtain appropriate protection is of vital importance in guaranteeing their ability to make informed decisions.

The above analysis illustrates that more comprehensive international and domestic legal frameworks are needed. Moreover, State officials must receive more extensive training with respect to the requirements for the identification and protection of victims of trafficking, specifically those officials most likely to obtain first contact with victims. States must also take a more active role in providing guidance to asylum adjudicators to ensure correct application of the 1951 Convention, taking note of the interpretative guidelines provided by UNHCR. This is crucial if the asylum framework is to uphold its position as a protector of those individuals suffering violations of their human rights in situations involving insufficient State protection. It is true that the eradication of human trafficking is of primary importance, but so long as the crime exists, there will be victims, and the protection of those victims should be of paramount importance.


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