Refugees / Trafficking

Keynote Speech, Professor James C Hathaway

Professor Hathaway spoke on what he calls an “interpretive muddle” in international refugee law, namely the meaning of “membership of a particular group” in art 1(A)(2) of the Refugee Convention.  Persecution on the basis of sex or gender is notably absent from the definition of “refugee” in the Convention.  So, as Professor Hathaway explained, the question is whether “membership of a particular group” can include sex or gender.  

Professor Hathaway then set out the ways various tribunals have answered this question.  He identified a fundamental difference in approach:  while some courts recognised women as members of a particular social group for the mere fact that they are women, others did not accept women could be distinguished from society at large for this reason alone.  

Professor Hathaway argued that the latter approach can have disastrous consequences for at-risk women seeking protection under the Convention.  Strong judicial input is therefore required to steer international refugee law away from this direction.  

In particular, Professor Hathaway emphasised the importance of interpreting the Convention in light of its purpose of non-discrimination.  Recognising women as members of a particular social group is not interpretively difficult. Nor does it carry any real risk of opening the “floodgates”.  His native Canada was one of the first jurisdictions to take this approach, and it has not led to any surge in women seeking protection as refugees on the basis that they are women.  

Professor Hathaway concluded by saying that international human rights law requires judges to take this approach:

What we need to do is to respect the “bottle” of international law, and to pour into the “bottle” a new, and dare I say, feminist, content, that actually ensures that the International Refugee Convention continues to provide solace, support and a new start to all those at risk of being persecuted for who they are or what they believe.


Judge Maria Gavilan Rubio

Following the Keynote speech, a number of panellists talked on the issue of trafficking.  First was Judge Maria Gavilan Rubio from Spain.  She explained how the most recent UNODC data showed that for every 10 victims of trafficking worldwide, five are women and two are girls.  The majority of victims of trafficking are thus female.  Generally victims of trafficking come from precarious economic situations, and poverty often has a female face.  Accordingly, attention is needed on the gender issues that underlie trafficking.

Her talk focused on challenges to achieving criminal justice for trafficking victims.  She had six requirements for achieving criminal justice with a theme of creating a victim-centric approach.  First, accompanying the victims through the process.  Second, victim-care and victim assistance offices, to ensure the victims right to information and that they are a subject not an object in the process. She noted Costa Rica was particularly good on this front.  Third, the need to protect witnesses.  Fourth, balancing the right to a defence with protecting the victims.  Fifth, understanding the victim’s testimony.  She noted she still saw acquittals where victims testimonies were not considered trustworthy as they are not precise enough for example.  Judges need to be trained to understand that often the way victims come across can be due to their process of recovery.  Thus psycho-social reports and the like are needed to explain why victims react the way they do.  She noted the General Council of the Judiciary in Spain has created protocols that assist Judges in educating themselves on the issues related to trafficking.  And finally, she talked on the need for unifying criteria so there is an objective civil test.     

Maria noted that trafficking is not just a criminal issue and so there is a need on a domestic level for inter-agency cooperation between police, prosecution, civil society organisations and immigration.  Moreover, trafficking crosses borders and so there is a need for international cooperation to streamline the process between countries and facilitate the investigation and resolution of trafficking. 


Magistrate Hellen Onkwani

Magistrate Hellen Onkwani from Kenya presented on trafficking from Kenya’s point of view.  She emphasised that the Government of Kenya is committed to taking preventative action to stop trafficking.  In terms of labour trafficking this can already be seen.  In January 2020 Kenya funded and provided training for law enforcement official from East Africa and Sudan and South Sudan.  There is a real acknowledgment that a collaborative approach is necessary.  Kenya has negotiated bilateral migration agreements with such countries as Uganda, Lebanon and Kuwait.  Kenya has also created a website for those seeking labour opportunities in the Middle East to provide information on safe migration opportunities.  There is also an employment authority in Kenya which mandate includes regulating labour migration.

There are challenges facing combating human trafficking in Kenya, including lack of safe houses, language barriers and the lack of specialised courts.  Victims are often charged under migration laws instead of perpetrator, and then if a perpetrator is charged it us often under other laws (such as sexual violence laws) rather than trafficking laws which have higher penalties.  In May 2018 the International Organisation for Migration made eight recommendations to Kenya regarding trafficking: (1)  address root causes such as employment; (2) the public and private sectors have to work in partnership; (3) sensitize communities and stakeholders; (4) strengthen capacity of stakeholders on relevant national and international legal frameworks;  (5); monitor and ensure proper enforcement of law; (6) enhance internal and international coordination among stakeholders; (7) research the demand side; and (8) research the nexus between human trafficking and violent extremism in Kenya.  To this Hellen added the need for training of police and judicial officers, specialised courts, creating awareness, and education in schools.  She finished by reminding us that this is an international issue and so cooperation is key.  To get justice for victims all stakeholders need to come together.


Judge Grecia Norceus

Judge Grecia Norceus from Haiti spoke on eradicating the “plague” of human trafficking in Haiti.  Since the ratification of the United Nations Convention against Transnational Organized Crime the Haiti chapter of IAWJ realised the visible face of human trafficking in Haiti is child domestic servants. 

Child labour is defined as all activities that deprive children of their childhood, their energy and their dignity and is harmful to their education and development.  Child labour in its extreme form amounts to a slavery.  She proposes that we should speak of a modern form of slavery for children and young Haitians who become domestic servants or “restavèks”.

Domestic servants come from poor families into economically well-off households.  A promise is made to provide food and education in return for the child doing some household tasks.  This often results from recruiters who take advantage of poor families living in extremely difficult situations.  There are more than 400,000 children working like this, with an estimated 75 per cent being girls.  After giving birth families may see giving up their child as a good decision due to the promises made, but these promises are never kept.  The state has taken action by defining servitude to include domestic service.  Moreover, IAWJ chapter in Haiti has been working since 2012 to educate not only judges on this issue but also the wider public. 

Grecia concludes by noting that Haiti does not need more laws, but needs to raise awareness of this issue and its consequences.  Moreover, the Government needs to focus on the root causes by fighting poverty and lack of employment in Haiti.


Reported by Rachel Buckman and Clara Sinclair