The Need to Integrate a Human Rights Perspective into the Irish Initiatives Combatting Human Trafficking

• Date: 01 January 2015
• Author: Adriana Ferreira Dos Santos Norbert Costa

75

The Need to Integrate a Human Rights

Perspective into the Irish Initiatives

Combating Human Trafcking

An analysis of the current legal framework on

the protection of victims of human trafcking at

international, regional and domestic levels

ADRIANA FERREIRA DOS SANTOS NORBERT COSTA

Introduction

The trafcking of human beings for exploitation purposes has been

classied by the United Nations (UN) as the new form of slavery, a practice

that unfortunately affects “all regions and countries, whether as countries

of origin, transit countries, or destination countries”.1 It is also one of the

fastest growing criminal activities in the world.2

The term “trafcking in human beings” applies to all persons in general,

with no distinction as to gender or age. However, it is widely acknowledged

that the large majority of victims of human trafcking are women and

children. This seems to be the reason why the UN normative instrument

on this matter, the Protocol to Prevent, Suppress and Punish Trafcking

in Persons, Especially Women and Children [hereinafter the Palermo

Protocol],3 focuses precisely on these two groups. This article will focus on

the trafcking of women.

Apart from the Palermo Protocol, there are also initiatives combating

human trafcking both at regional and domestic levels. Special attention

will be drawn in this paper to the European legal and administrative

framework, which includes the Council of Europe Convention on Action

against Trafcking in Human Beings, Warsaw [hereinafter the Council

of Europe Convention],4 the EC Directive 2004/81/EC of 19 April 2004

1 The Ofce of the United Nations High Commissioner for Human Rights (OHCHR),

Report of the Special Rapporteur on Trafcking in Persons, Especially Women

and Children (U.NDocA/HRC/10/16 2009), cited in Viviana Waisman, “Human

Trafcking: State Obligations to Protect Victims’ Rights, the Current Framework and

a New Due Diligence Standard” (2010) 33 HICL Rev 385, p.389

2 ibid, p.388

3 Supplements the UN Convention against Transnational Organized Crime 2000

4 Council of Europe Convention on Action against Trafcking in Human Beings 2005

04[01] Ferrara.indd 75 03/06/2015 15:13

76      

[hereinafter the Council Directive]5 and the Directive of the European

Parliament and of the Council 2011/36/EU of 5 April 2011,6 which replaced

the Council Framework Decision 2002/629/JHA [hereinafter the Directive

2011/36/EU].7

The initiatives on combating human trafcking in Ireland, which include

the Criminal Law (Human Trafcking) Act 2008 [hereinafter the 2008 Act],

the Criminal Law (Human Trafcking)(Amendment) Act 2013 [hereinafter

the 2013 Act] and the Administrative Immigration Arrangements for the

Protection of Victims of Human Trafcking [hereinafter Administrative

Arrangements],8 will also be examined.

The existing framework at international, regional and domestic levels

shows that the main concern of governments seems to lie within law

enforcement rather than the protection and assistance of victims. The

Palermo Protocol, as Anne Gallagher puts forward, was drafted by the UN

Crime Commission and not by a human rights body, which results in its

“relatively weak language regarding human rights protections and victim

assistance”.9 The European scheme is commonly criticised for the same

reason and also for treating the victims as means to an end—the States tend

to provide the victims with protection against the risk of retribution so long

as they give evidence that can support prosecution of the perpetrators10—

and the Irish model follows the same path.

It is important to bear in mind that the protection of victims of human

trafcking is not only a legitimate concern from a moral point of view.

Under international human rights law, States have the obligation to protect

victims of human trafcking within their jurisdictions, since, according to

that branch of law, they have the duty not only to refrain from committing

violations themselves through their agents; they must also adopt measures

to ensure that rights are not abused by others. More specically, States

must organise the governmental apparatus and set up “in general all the

structures through which public power is exercised so that they are capable

5 Council Directive (EC) No 81/2004 of 19 April 2004 on the residence issued to third-

country nationals who are victims of human beings or who have been subject of an

action to facilitate illegal immigration, who decide to cooperate with the competent

authorities

6 Council Directive (EC) No 36/2011 of 5 April 2011 on preventing and combating

trafcking in human beings and protecting its victims

7 Council Framework Decision No 629/2002 of 19 July 2002 on combating trafcking

in human beings

8 Irish Naturalisation and Immigration Service – Department of Justice and Equality,

available at http://www.inis.gov.ie/en/INIS/Pages/PB08000021 [Accessed 8 April

2014]

9 Anne Marie Gallagher, “Triply Exploited: Female Victims of Trafcking Networks

– Strategies for Pursuing Protection and Legal Status in Countries of Destination”

(2004–2005) 19 G.I.L.J. 99, p.102

10 Ryszard Piotrowicz, “European Initiatives in the Protection of Victims of Trafcking

who Give Evidence Against Their Trafckers” (2002) 14 I.J.R.L. 263, p.267

04[01] Ferrara.indd 76 03/06/2015 15:13