(Our thanks to IntLawGrrls for the opportunity to contribute this guest post.)
In countries around the world it is common practice for victims of trafficking who have been ‘rescued’ or who have escaped from situations of exploitation to be placed and detained in public or private shelters. The term ‘detention’, as used in this context, refers to a very specific situation in which the individual concerned is unable to leave the facility if and when she or he chooses to. In some cases, shelter detention is a short-term measure that may be prompted by concerns about victim well-being or safety. In the most egregious situations, victims can be effectively imprisoned in such shelters for months, even years.
Our Study, Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, considers the international legal aspects of victim detention in shelters and weighs up the common justifications for such detention from a legal, policy and practical perspective. It is based on both desk research of shelter practices in a number of countries and more direct exposure to shelters through field-based research undertaken principally in South East Asia.
This Study is divided into two parts.
This part analyzes the international legal framework, and concludes that routine detention of victims or suspected victims of trafficking in public or private shelters violates a number of fundamental principles of international law and is, therefore, to be considered prima facie unlawful.
Failure of the State to act to prevent unlawful victim detention by public or private agencies invokes the international legal responsibility of that State. Victims may be eligible for remedies, including compensation, for this unlawful detention. In certain situations, the State may be able to successfully defend victim detention in shelters on a case-by-case basis with reference to, for example, criminal justice imperatives, public order requirements or victim safety considerations. The internationally accepted principles of necessity, legality, and proportionality should be used to evaluate the validity of any such claim. Application of these principles would most likely only support a claim of lawful detention in relation to a situation where detention is administered as a last resort and in response to credible and specific threats to a victim’s safety.
This part considers the practical and strategic implications of the various policy arguments that are advanced in favour of victim detention. It asks:
► Can victims consent to their own detention?
► Is it indeed true that detention provides the only – or even the best chance of delivering much needed support and protection to victims of trafficking?
► Is it reasonable to cite the overwhelming reliance on victim testimony in human trafficking cases as grounds for ensuring these witnesses be prevented from disappearing?
► Should the situation be different for victims who lack legal migration status?
These questions are framed and responded to with particular reference to documented shelter practices in two countries of South East Asia: Cambodia and Thailand.
With only minor caveats, the Study concludes that in addition to their weak legal value, the arguments advanced in favour of victim detention are largely devoid of practical or strategic value.