The right to reparation and compensation of victims of human trafficking

by Panagiotis Kontakos,

Introduction

Trafficking in human beings is a global issue affecting nearly every country in the world. In fact, it is considered to be the slavery of the 21st century and is often referred to as “modern or present-day slavery” based on the fact that human beings are regarded as articles of trade in both cases. The main goal of human trafficking is financial profit. The large proportions of the amount of money are earned at the expense of the victims whose wages are withheld or taken from them. The victims often feel the need for financial compensation from the offender. This compensation has been found to satisfy a need for justice and to help victims to recover and prevent re-victimization. This analysis addresses the issue of reparation and compensation of people that have suffered human trafficking, under the light of the international norms.

The concept of “human trafficking” under the light of International Conventions

The oldest form of human exploitation is slavery. The sale of slaves as articles of trade was a common practice in ancient Greece and Rome. Slaves were denied the right to privacy and property and they were passing under the ownership of their masters. However, there is one fundamental difference between the classical concept of slavery and modern forms of exploitation. While in the past, slave owners openly demonstrated their slaves, prided themselves of their number and their abilities, nowadays, “slave owners” seek to hide their slaves at all costs because of the illegitimacy of human trafficking. Today, human trafficking and exploitation cannot be restrained by borders and can be found in all countries, rich and poor. In fact, human trafficking constitutes a transnational organized crime. Victims of trafficking incur physical, mental and material damage that takes great effort and a long time to heal, as well as makes their return to society painful and difficult.

On the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime, both adopted by the resolution 55/25 of the General Assembly on November 2000, the following definition is stated in the Article 3.a):

        For the purposes of this 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 the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
• The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
• The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;
• “Child” shall mean any person less than eighteen years of age.

Trafficking in persons involves three key elements:

• Action: recruitment, transportation, transfer, harbouring or receipt of persons;
• Means: threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or vulnerable position or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person;
• Purpose: exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. (IOM, 2016, pp. 14-16)

However, there is no specific definition of “victim of trafficking”, the determination of the status is made by reference to the offense of trafficking in persons defined in the above-mentioned Article 3.a) of the Protocol. In these terms, any person that is the object of the practice defined in Article 3.a) of the Protocol can be considered victim of trafficking. (Romani, 2012, pp. 56-57)

In the European regional framework and the Council of Europe, the Convention on Action against Trafficking in Human Beings (Warsaw, 2005) states in Article 4.a) that “Victim shall mean any natural person who is subject to trafficking in human beings as defined in this article”. The provision defining the trafficking in human beings is the same as the one included in the Article 3.a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.

In the European Union level, the Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims does not contain a definition of the victim of trafficking, but the determination of the status of the victim is done with reference to the criminal offences referred to in Article 2. According to the latter:

1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those 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.
2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.
3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude or the exploitation of criminal activities or the removal of organs.
4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used.
5. When the conduct referred to in paragraph 1 involves a child, it shall be a punishable offence of trafficking in human beings even if none of the means set forth in paragraph 1 has been used.
6. For the purpose of this Directive, “child” shall mean any person below 18 years of age. (Romani, 2012, pp. 56-58)

The obligation to provide remedies under trafficking instruments

Remedies are the processes by which arguable claims of human rights violations are heard and decided, whether by courts, administrative agencies or other competent bodies. The second notion of remedies refers to the outcome of the proceedings, the relief afforded to the successful claimant.

The Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) explicitly requires States to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity”. Where a victim of human trafficking has suffered a violation of a right protected by a human rights treaty that additionally protects the right to a remedy, the failure to provide an effective domestic remedy becomes an additional breach of the treaty.

The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking in Persons Protocol) and the United Nations Convention against Transnational Crime (UNTOC), oblige States parties to provide trafficked people with the legal possibility of obtaining compensation. The UNTOC requires States to “establish appropriate procedures to provide access to compensation and restitution for victims of offences covered by this Convention”. Article 6(6) of the Protocol requires each State to “ensure its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered”. The right to an effective remedy is also regulated in the Council of Europe Convention on Action against Trafficking in Human Beings. According to Article 15(3) of the European Trafficking Convention, “each State Party shall provide, in its internal law, for the right of victims to obtain compensation from perpetrators”. Article 15(4) addresses the situation that may arise if compensation cannot be obtained from offenders, by requiring that State Parties adopt “such legislative or other measures as may be necessary to guarantee compensation for victims”.

The 2014 ILO Protocol to the Forced Labour Convention, in its preamble, states that “trafficking in persons for the purpose of forced or compulsory labour, which may involve sexual exploitation … requires urgent action for its effective elimination”. Article 4 of the Protocol complements the international framework for protecting victims’ rights in two ways. Firstly, it requires States to “ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation”. Secondly, it requires governments to ensure they have the discretion to not prosecute victims of forced labour for unlawful activities – for example, immigration offenses or sex work – that they may have been compelled to commit as a direct consequence of being in a situation of forced labour.

Under the Convention on the Rights of the Child, States must protect the rights of trafficked children, including procedures to receive compensation. The UN Committee on the Rights of the Child recommends that States establish “effective, child-sensitive procedures” to provide “child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance”. Where the rights of the child have been violated, remedies should include “…appropriate reparation, including compensation and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration, as required by the Article 39 of the Convention.” (UN, 2016, pp. 5-7)

The right to reparation and compensation

Within the international obligation of reparation, there is a difference between compensation and reparation. While compensation intends to constitute economic compensation for damage (material and moral) caused to the victim, reparation has a wider content, since, in addition to the compensation itself, it includes other measures, such as restitution, rehabilitation, satisfaction and guarantees of non-repetition. The measures can be individual (restitution, compensation and rehabilitation) and/or collective (satisfaction and guarantees of non-repetition). (Romani, 2012, pp. 180-181)

Reparation as an instrument of corrective or remedial justice that aims at rectification of the wrong done to a victim has been recognized under international law. The reparation for the damage caused requires “whether possible” full restitution (restitution in integrum). If this is not possible, the tribunal can impose a series of measures in order to ensure respect for the violated rights and repair the consequences which were caused by the violations and establish the payment of compensation as compensation for the damage caused (Inter-American Court of Human Rights, Case of Almonacid Arellano and others vs. Chile, 2006, para. 136). However, it is impossible to repair the irreparable in the sense that reparation cannot restore the victim to the position it had before the commission of the crime. Try to repair means to find the equivalent of a reparation that is impossible. In these terms, reparation does not repair, it only relieves. (Romani, 2012, p. 178)

Reparation comprises both moral harm and material damage. Material damage shall mean the loss or deterioration of victims’ revenues, the costs incurred on the occasion of the facts and the pecuniary consequences that have a causal link with the violations. Moral damages refer to “both the suffering and the afflictions caused the direct victim and their relatives the erosion of values very significant for the people as well as alterations, not pecuniary in nature, in the conditions of existence of the victim or his family” (I/ACHR, Case La Cantuta vs. Peru, 2006, para. 216).

Concerning the European Convention on Human Rights, it allows the European Court of Human Rights to agree on a “fair satisfaction”. (Bottiglero, 2004, p. 111) Based on Article 41 of the Convention, the Court agrees only on financial compensation for material and immaterial damages as well as for the payment of costs and costs of the processes. (Romani, 2012, pp. 181-182)

The international norm concerning victims that accurately develops these measures is the General Assembly Resolution 60/147 adopted in December 2005. Through this act, the Basic Principles and Guidelines of the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law established by the UN Commission on Human Rights (Resolution 2005/35) are adopted. According to paragraph 15 entitled “Reparation for harm suffered”:

“Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions, which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where a person, a legal person or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim.” (Romani, 2012, pp. 182-183)

As already stated above, reparation has broader content than compensation.  It comprises of the following forms: restitution, compensation, satisfaction, rehabilitation and guarantees of non-repetition.

Restitution means to restore the victim –whenever possible- to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes “as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property” (Resolution 60/147, 2005, paragraph 19). (Tomuschat, 2007, pp. 579-581)

When restitution is materially impossible (in cases of enforced disappearances, attacks against life, mutilations, rape, torture, deprivation of liberty), reparation by equivalence or compensation takes place. Compensation is de facto the most common way to repair. (Romani, 2012, p. 184)

In addition, rehabilitation refers to helping the social reintegration of victims through psychological, medical, legal and social support. Rehabilitation and compensation are interrelated as one can be obtained through the other. (Resolution 60/147, 2005, paragraph 21).

With regard to satisfaction (paragraph 22 of the Resolution 60/147), it shall include, “where applicable, any or all” of the measures listed below:

• Effective measures aimed at the cessation of continuing violations;
• Verification of the facts, full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses or persons who have intervened to assist the victim or prevent the occurrence of further violations;
• The search for the whereabouts of the disappeared, for the identities of the children abducted and for the bodies of those killed and assistance in the recovery;
• An official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;
• Public apology, including acknowledgment of the facts and acceptance of responsibility;
• Judicial and administrative sanctions against persons liable for the violations;
• Commemorations and tributes to the victims;
• Inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels. (Romani, 2012, pp. 184-185)

Satisfaction shall include measures related to the damage caused to the life project of the victims and their families (such as scholarships for studies), physical and psychological treatment to the families of the victims. The aim is also to reveal the truth of what happened and to determine responsibility for the unlawful acts. (J-B, 2009, p. 69)

In accordance with paragraph 23 of the above-mentioned principles and guidelines, the guarantees of non-repetition shall include, “where applicable”, any or all of the following measures that will also contribute to prevention:

• Effective civilian control of military and security forces;
• Compliance of all civilian and military proceedings with international standards of due process, fairness and impartiality;
• Strengthening the independence of the judiciary;
• Protecting persons in the legal, medical and health care professions, the media and other related professions and human rights defenders;
• Ensuring the observance of codes of conduct and ethical norms, especially international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel as well as by economic enterprises;
• Reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law. (Romani, 2012, pp. 185-186)

Regarding the compensation, it must be “fair”, “appropriate” and “rapid”. In case the compensation cannot be provided by other sources, the State on whose territory the act of victimization took place should compensate the victim. Cooperation between States is required, when the unlawful act was committed in the territory of a State other than that of the victim’s residence. Moreover, international norms have concluded to the creation of specific funds to compensate victims, such as the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, of November 1985. For example, Article 79 of the Statute of the International Criminal Court establishes the Trust Fund for the benefit of victims of crimes and their families within the jurisdiction of the ICC. (Romani, 2012, pp. 186-187)

It is essential to be noted that the right to compensation and reparation does not exist without previously fulfilling the obligation to carry out a serious, impartial, prompt and effective investigation. This obligation is confirmed by Article 3 (prohibition of torture) and Article 13 (right to an effective remedy) of the European Convention on Human Rights. (ECHR, Case Aksoy vs. Turkey, 1996, para. 98)

According to the paragraph 20 of  the Resolution 60/147, “Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violations and the circumstances of each case, resulting from gross violations of international human rights law and serious violations of international humanitarian law, such as:

• Physical or mental harm;
• Lost opportunities, including employment, education and social benefits;
• Material damages and loss of earnings, including loss of earning potential;
• Moral damage;
• Costs required for legal or expert assistance, medicine and medical services and psychological and social services.

Conclusion

In conclusion, human trafficking constitutes a serious crime that threatens human safety, dignity and liberty. Victims of human trafficking have the right to be reimbursed for damages they have suffered. This right to reparation and compensation includes restitution of both material and immaterial damages. Victims fighting for such remedies and compensation from perpetrators have a few options at present in many countries. Initiatives on a global, regional and national level should be strengthened in the direction of anti-human trafficking policies within a human rights framework of reparation.

References

Bottiglero, (2004). Redress for victims of crimes of crimes under International Law. Nijhoff, Leiden/Boston.

IOM, International Organisation for Migration, (2016). Human Trafficking and Exploitation. IOM.

Jeangène Vilmer, J.B. (2009). Les réparations aux victimes devant la Cour Pénale Internationale. PUF.

Romani, C. F. d. C., (2012). International Law of Victims. Springer.

Tomuschat, (2007). Reparation in favour of individual victims of gross violations of human rights and international humanitarian law. Liber Amicorum Lucius Caflish.

INTER-AGENCY COORDINATION GROUP AGAINST TRAFFICKING IN PERSONS  (2016). Providing Effective Remedies for Victims of Trafficking in Persons. United Nations.

 

 

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