Abstract
The concept of human trafficking under the Criminal Code of Azerbaijan, as witnessed in such cases as Zoletic and Others V. Azerbaijan, lacks or is not sufficiently clear under the international criminal laws’ “State or organizational policy“ and “the knowledge of the attack“ requirements. Furthermore, the definition and subsequent lack of the mens rea and “internalizing“ elements in the Criminal Code of the Republic of Azerbaijan exacerbate the identification process of victims of human trafficking. In addition, the reflection period provided by Azerbaijan’s criminal laws is insufficient to accurately identify the victim of such vice. This paper argues that the criminal law of the Republic of Azerbaijan should reflect the current features of customary international law with regard to crimes of human trafficking by incorporating mens rea and “internalizing“ elements that are arguably missing from its Criminal Code.
Introduction
Research Question
What significant steps must be taken to improve the process of identification in Azerbaijan and adapt to the best practices in the international sphere, which will minimize the negative impacts on the victims of human trafficking?
Human trafficking has been a global and international problem that has affected more than 20 million people around the world. Looking through the statistics, it is obvious that the issue has been a concern for people and that the need for a solution increases every day. It is considered an immoral crime since one of the main purposes of human trafficking is to deprive the victims of their honor and dignity.
In world history, the first reference to human trafficking was slavery. Unsurprisingly, many scholars mention human trafficking as a modern practice of slavery. The slavery society appeared at the beginning of human civilization; nevertheless, it culminated in the 18th century. The definition of slavery was given in the “Slavery Convention“ of 1926. It is understood from the definition that slavery deprives basic human rights and freedoms and undermines the victim’s honor, morality, and dignity. Victims of both human trafficking and slavery demonstrate parallel symptoms and similar repercussions.
While the victims display obvious physical signs, in addition to that, they go through psychological, mental, and emotional torture. Beyond doubt, the crime’s ramifications overwhelm and transform the victims’ lifestyles continuously. In this regard, the topic of human trafficking is a timely concern for both the states and the victims.
It is an undeniable and proven fact that the majority of victims of human trafficking are women and children due to their being more vulnerable and exposed. According to the statement by Ms. Sima Bahous, UN Women Executive Director, at least 65% of victims of trafficking consist of women and young girls, and 90 percent of those victims are trafficked for sexual exploitation.
The victim identification process is the most vital problem in human trafficking crimes. Identification of victims must be done thoroughly, attentively, and with absolute care and thought in view of the fact that in the crime of trafficking in persons, the concept of “re-victimization“ harms and hurts the victim frequently. Therefore, this research paper contains the problems of identification and re-victimization processes, and furthermore offers solutions for those complications.
This research investigated the reasons, goals, and results of human trafficking. The research is arranged in sections: introduction, types and methods, root causes, individuals in human trafficking, challenges of identification, human trafficking in Azerbaijan, and conclusion. Eventually, the paper aimed to answer several questions:
- How can we increase public awareness and implement new systems to prevent trafficking in persons?
- How does the identification process impact victims’ state of mind?
The research, therefore, compares the definition of human trafficking included in the Criminal Code (CC) of the Republic of Azerbaijan with that found in international humanitarian law. Hence, the study focused on the problems with how human trafficking is conceived of under Azerbaijani legislation. Azerbaijan’s government is not adequately cautious on anti-trafficking measures. Thus, this study contended that major efforts are necessary to eradicate human trafficking because the effects of human trafficking on victims are a big societal issue.
The government of Azerbaijan has had a positive impact on human trafficking policies. For instance, despite the impact of the COVID-19 pandemic on its anti-trafficking efforts, the government’s overall efforts increased throughout the fiscal quarter, resulting in Azerbaijan’s promotion to Tier 2. The government increased its efforts to protect victims.
However, the government fell short in a number of critical areas. The Azerbaijan government did not perform sufficient investigations, prosecutions, or proactive identification efforts, particularly in the case of Azerbaijani survivors of internal trafficking and prisoners of forced labor.
Methodology
In this paper, an example of qualitative research was used, where findings from primary and secondary sources were examined to support a certain thesis. Therefore, databases and legal papers were used as primary and secondary resources. Human trafficking reports from government agencies, non-governmental groups, and international organizations were reviewed using INTERPOL databases for this investigation. Publicly accessible, largely English-language resources for identifying victims were also analyzed, with a focus on Azerbaijan. In addition, the research looked at cases of human trafficking in Azerbaijan’s criminal justice system.
Identification and Access of Victim Identification Resources
The criteria for inclusion were used to locate victim identification resources. The emphasis was on determining the tools used by anti-trafficking professionals. Despite the initial decision to solely include operational tools, the inquiry revealed that victim identification was discussed in a wide variety of other resources (such as referral directories, handbooks/manuals/guidelines, and so on). The research included these diverse resources for dealing with the victim identification issue because the compilation of victim identification documents is geared toward the identification process in the case of Azerbaijan and serves as a practical resource for policymakers.
Limitations of the Review
There are a number of limitations to this study. When identifying resources and instructions that are concealed behind broader forms of security, it is possible that the search procedure may miss them.The research was only able to look at English-language identification resources; hence, it may have missed those that wereoriginally established in other countries yet have been translated into English.
Results
Types and Methods
Coercion, kidnapping, deceit, deception, assault of power or authority, vulnerability, or the exchange or acceptance of payments or benefits in order to obtain the approval of a person having authority over another person for the intent of exploitative behavior are all examples of human trafficking. Forced slavery, sexual abuse, enslavement, slaver, subservience, exploitation in wars, use of children in solicitation, and organ removal are all forms of human trafficking that have been identified by a wide range of national, international, and local organizations.
Human trafficking happens both across international boundaries and inside individual nations. Human trafficking is the worst kind of trafficking since it involves the exploitation of human beings as a commodity, which is then used and reused, sold and resold, mistreated with force or compulsion, exploited, and violates human rights. To control, prevent, and counter the acts of human trafficking, the international community, with the help of the United Nations, has enforced anti-trafficking protocols and measures to combat it.
Root Causes
The available literature on human trafficking and exploitation in the workplace reveals that most victims voluntarily seek out employment overseas. A dissatisfactory economic position, in the form of a lack of employment or occupations that pay well enough, is a major element motivating the choice to move. According to the data, men in Azerbaijan are far more likely to migrate than women. It is generally assumed that women should remain at home to raise children and take care of the house, while men should work to provide financially for the family.
Women who lost their male breadwinner due to death, divorce, or other circumstances were forced to migrate overseas in search of employment. The economic desperation and sexuality of this group of women make them susceptible to exploitation and trafficking. People from economically and socially marginalized groups are disproportionately affected by human trafficking and exploitation. The existing data does not provide many clues as to who is most at risk and what other traits the “most at risk“ groups share. IOM data from 2002–2003 shows that migrants of both sexes face a high risk of sexual exploitation.
The Concept of Human Trafficking in International Criminal Law
Overview of the History and Development of the Concept
While crimes involving human trafficking are “as old as humanity itself,“ the notion of such crimes has grown and been expounded upon in international criminal law during the last thirty years. According to this concept, the African slave trade was the first type of human trafficking on a worldwide scale. This is the first documented transnational flow of human trafficking, with buyers from both the Americas and Europe and many African communities serving as both commodities and facilitators of the transaction. However, until the British passed the first rule prohibiting slavery in 1807, this commerce was not only legal but also condoned by the government.
In 1820, the United States outlawed the practice, which was forty years before the start of the American Civil War. No supranational body existed at the time to make judgments with such widespread legal effect. However, the International Convention for the Suppression of Traffic in Women and Children was signed by 33 nations in 1921 during a League of Nations international meeting.
Chapeau: Contextual Element
The accused’s actions must have been carried out “as part of a widespread or systematic attack directed against any civilian population“ for them to be considered crimes against humanity. This term was coined to describe the features of crimes against humanity that set them apart from other international crimes like genocide and war crimes. Each of these factors will be discussed below.
Crimes against humanity, which encompass human trafficking, must first constitute “an attack,“ with the accused’s actions being an integral component of the attack. Some observers have argued that the phrase “acts committed as a part of… attack“ in article 7 of the ICC Statute elaborates “the context element“ of crimes against humanity. One set of authors even goes so far as to say these actions are the assaults themselves. One possible interpretation of the contextual element of crimes under human trafficking is “an attack against the civilian population,“ in which case, the torture of a large number of people might qualify as an example of such an attack.
No matter how long it has been since a crime against humanity was committed, the International Criminal Court may still bring charges. In line with Article 29, “the crimes within the jurisdiction of the Court shall not be subject to any statute of limitations,“ no time limit or restrictions apply to cases heard by the Court. Nevertheless, prior to the Statute’s official implementation, “no person shall be criminally responsible under this Statute,“ as stated in Article 24.”
The International Criminal Court, one of several such organizations, adopted the Rome Statute to address and have all-encompassing authority over the most severe crimes that concern humanity, including human trafficking. Article 7 of the 1956 Convention on the Abolition of Slavery, the Slave Trade, and all Institutions and Practices Identical to Slavery is likewise included in the Rome Statute: the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, states the agreement’s definition of enslavement.
Slavery in the convention is defined as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.“ Slavery, sexual servitude, prostitution for hire, and other forms of sexual abuse of equivalent intensity fall under Article 7 of the Rome Statute, which was established to address crimes against humanity. According to the Rome Statute’s slavery clause, which is referred to in Article 7 (1) of the treaty, “trafficking in persons“ constitutes a crime against humanity.
Acts Constituting an Attack on Civilians
According to Article 7 of the Rome Statute, an assault on any civilian populace must be both systematic and extensive. Attacks on this scale are “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack“. This definition includes but is not limited to war or military assault when referring to the course of behavior alluded to, namely abuse and exploitation, including numerous commissions of the offenses intended at a civilian population. The fact that such attacks are carried out in coordination with other criminal organizations, like organized crime gangs, makes it clear that they are not aimed at an entire nation’s or region’s civilian population, but rather at specific members of that population.
According to research, the political structure of a state is directly responsible for the spread of terror, as well as prejudice and exploitation of ordinary people. Human trafficking activities, such as the trafficking of several individuals forming multiple charges as described in Article 7 of the Rome Statute, may be seen as assaults against any civilian population.
Attacks as Widespread and Systematic Phenomena in Nature
Human trafficking and attacks on innocent civilians are typically both widespread and systematic, as they target large numbers of people who are especially susceptible to these kinds of abuses due to their frailty and exposure. Such assaults are systematic because they are planned in advance, and the traffickers follow a specific plan of action. While such violence often occurs on a massive scale and spans international boundaries, it has been documented on occasion as a more localized incident.
Human trafficking on a massive scale occurs when North Korean women are sold into prostitution in China, although further research is needed to confirm this. However, owing to different limitations put on the data of North Korean refugees, it is very difficult to undertake research to learn the truth about trafficking in this region.
Perpetrator’s Knowledge of the Attack
According to Article 7 of the Rome Statute, a person who commits a crime or assault against a civilian population in a broad and systematic way must be aware that they are conducting a crime or attack against a civilian population. The offender either knew or meant for the action to be part of a larger, more coordinated assault on a civilian population. As per the article, “the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization,“ it is not necessary to provide evidence that the assailant knew all of these things. This suggests the perpetrator was aware of the assault, albeit he or she may not have known all the specifics of the assault or the government’s or the company’s policy.
Problems of the Identification Process of Victims
Victims’ testimonies are crucial to the successful conviction of traffickers. The probability of victims collaborating with law enforcement agencies to bring charges against offenders and the possibility of the efficacy of victims as witnesses in Court have both been shown to increase when victims are treated with respect and sensitivity in a manner that acknowledges their rights and supports in their rehabilitation and reintegration into society as a whole.
It has been noted that the effectiveness and quantity of prosecutions might suffer when victim assistance is too tightly linked to criminal justice responses to trafficking in people. When it comes to the criminal justice system, Davy points out that “victims of trafficking may face significant and ongoing risks to their safety as individuals, as well as their mental and physical health for little or no benefit.“ As a result, effective and efficient victim assistance services are crucial.
Elliott rightly argues that identifying victims of trafficking is often a challenging process. Victims often do not come forward, laying the burden of action on bystanders. For a variety of reasons, victims may not come forward, including:
- Mistrust of State authorities on the part of victims. Specifically, they may have had negative prior interactions with law enforcement. They may have been given false information about the repercussions of cooperating with police by traffickers.
- Victims may worry that the state would forcefully place them in shelters for an extended period of time so that they may testify in criminal cases against traffickers.
- Victims are frequently hesitant to assist the police because they are afraid of their traffickers or because they are embarrassed by what they have been through.
Victim’s reflection periods have, in several instances, been a cause of problems in the identification of victims of human trafficking. “When there are plausible explanations to think that a person is a victim, each party shall provide in its internal law a recovery and reflection period of at least 30 days,“ as stated in Article 13 of the Council of Europe Convention.
Within the time frame, the individual in question should be able to either recuperate and break free from the control of traffickers or make an educated choice about whether to cooperate with the appropriate authorities. There will be no way to implement an expulsion order against them during that period. This clause does not limit the ability of national authorities to investigate and prosecute the alleged crimes at any point throughout the appropriate national procedures. The parties agree to allow the affected individuals to remain on their territory during this time.
Sadly, State authorities frequently fail to provide people with appropriate information and time to think through the decisions that are demanded of them, thus resulting in their inaccurate identification as victims of trafficking. People who have been trafficked sometimes face further persecution and retaliation from their traffickers if they return to their home countries after the reflection period has ended. This implies that law enforcement agencies will not have access to crucial data needed to successfully identify victims of trafficking.
Problems of Missing Elements in the Identification of Victims of Human Trafficking under the Criminal Code of the Republic of Azerbaijan
Mens Rea of Human Trafficking in Azerbaijan
Human trafficking requires an intentional act to be committed, or mens rea, such as facilitating the unlawful admission of another person into a nation. The accused’s mental condition is represented by the mens rea requirement. In this instance, the lack of mens rea likely stems from inadequate mens rea criteria under Azerbaijani criminal law, which should call for the offender to have “the knowledge of the attack.“ Indeed, the completion of the national legal and conceptual framework involving human trafficking offenses requires the formulation of those elements based on the comparative methodology below.
The ‘mental‘ component, or the need for mens rea on the side of the accused, plays an important role in setting crimes involving human trafficking apart from other crimes. Therefore, the accused must have “the knowledge of the attack,“ as stated under Article 7 of the International Criminal Court Statute. In addition, a “second contextual element“ of crimes, human trafficking crimes, has been established by The Elements of Crimes, which stipulates that “the offender must understand that the conduct is part of or intends the conduct to be part of a broad or organized assault against a civilian populace.“
As “an extra mental element to be separated from the broader mens rea criterion of article 30 of the ICC Statute,“ the criterion is also compatible with the doctrine of ad hoc courts.“ Therefore, it is crucial to make a distinction between the strict conditions for the attack and those in terms of the accused’s actions. Within the framework of human trafficking, “the knowledge of the acts“ and “the knowledge of the attack“ should be distinguished from one another. Article 30 of the ICC Statute defines “knowledge“ as “knowing that a condition exist or knowing a consequence will arise in the regular course of occurrences.”
The phrase “forced labor“ conjures up images of physical or psychological compulsion. The phrase “compulsory work“ cannot be used to describe any kind of legal duty or force. For instance, under Azerbaijani criminal law, a piece of work that is to be done as part of a freely negotiated contract cannot be deemed to fall under the purview of Article 4 of the Convention because one of the parties has promised to do it and will face the consequences if they break their words.
Labor that is “exercised under the threat of any consequence“ and carried out against the will of the individual in question, that is, labor for which he “has not given himself willingly,“ is what is required. In Van der Mussele, the Court determined that the argument about the applicant’s “previous consent“ should be given “relative weight“ and chose a method that took into consideration all the case’s facts. It specifically noted that, under certain conditions, a provided “service might not be viewed as having been willingly accepted previously“ by a person. In light of all the relevant facts, it is necessary to evaluate the legitimacy of the consent.
The Court focused on the idea of “consent“ in the case of Chowdury and Others, highlighting the fact that “when an employer abuses his position or takes advantage of his employees’ frailty in order to exploit them, they do not give themselves for employment freely.“ In this case, despite the Azerbaijani Court emphasizing that “the prior consent of the victim is not enough to exclude the classification of work as “forced labor”, the question of whether or not a person presents himself in employment voluntarily is still an issue of fact that needs to be investigated in light of every relevant aspect of a case. Furthermore, with the absence of the interpretations of ICC, it is impossible to establish or identify a victim of human trafficking under the criminal laws of Azerbaijan, as it was difficult to establish within the purview of the above cases.
Missing “Internalizing“ Elements
One of the major obstacles to identifying victims of human trafficking under the legislation of the Republic of Azerbaijan and the Criminal Code of Azerbaijan is the lack of a defined and comprehensive definition of trafficking. Azerbaijan’s Criminal Code must incorporate the Palermo Protocol’s accurate description of trafficking in order to take up and effectively prosecute the aim of determining the Rome Statute, which was to encompass and broaden all forms of slavery and servitude as a consequence of trafficking.
Human trafficking victims may be hard to find, and it can be very hard to prove under Azerbaijan’s Criminal Code, which is used to bring trafficking cases to justice. Article 7(1)(c) of the Rome Statute makes it plain that “trafficking in people, in particular women and children,“ is what is meant by the term “trafficking.“ However, under Azerbaijan’s criminal legislation on human trafficking, the relevant definition of trafficking is not clear, and it does not simply refer to the act of attaching ownership over a person or restricting their freedom.
As the case of Molla Sali v. Greece shows, the lack of a clear definition of “trafficking“ under Azerbaijan’s criminal statutes presents a significant hurdle for any future prosecution of trafficking cases. Due to the fact that “trafficking“ is regarded as a form of modern-day slavery, the absence of a clear and accurate definition of the term in Azerbaijan’s criminal laws makes it difficult to identify victims, which has an impact on the extent of recognizing victims and the subsequent charges of trafficking cases.
Recommendations
Steps the Government of Azerbaijan Should Take to Improve or Change the Process of Victim Identification
The following steps aim to fill in some of these blanks in victim identification for the Government of Azerbaijan:
- Create and disseminate methods for locating victims of exploitation of any kind.
- Make sure that tools and resources are developed and tailored with children in mind.
- Give specific recommendations for promoting gender equality in victim identification.
- Check that male victims are not left out of any identifying procedures or materials.
- Make sure that materials for identifying people do not reinforce harmful gender stereotypes, assumptions, or conventions.
- Take into account and evaluate various victim features and vulnerabilities.
- Recognize and handle linguistic challenges in victim identification.
- During prosecution, it is crucial to separate human trafficking from war crimes and look at it through the lens of Article 7 of the Rome Statute, which deals with Crimes Against Humanity.
- The government of Azerbaijan should incorporate the requirements of “state or organizational policy“ and “knowledge of the attack“ into its Criminal Code.
Reflection Period Adjustments
Human trafficking survivors also deserve more time to think things over than the 30 days provided as a reflection period. The reflection time is contingent on the victim severing links with the traffickers and agreeing to get help from a designated facility. The victim should be provided with proof of residence for a minimum of six months before making a statement.
After inquiring with the Prosecutor’s Office two months prior to the residency document’s expiration date, the Immigration Office can authorize the issuance of a second short-term permit of stay, valid for another six months, if the individual is believed to be a trafficked person and the complaint against the trafficker is still under judicial inquiry. Both of these forms of identification should provide the victim access to the job market. The victim should also be entitled to social services, including welfare, education, and counseling.
Conclusion
Due to its lack of a clear definition of “Perpetrator’s knowledge of the assault“ and other components, the criminal legislation of the Republic of Azerbaijan does not effectively capture the concept of crimes on human trafficking as generally recognized by international criminal law. In turn, the idea offered by domestic criminal law does not capture the aforementioned shared features. The aspect known as the mens rea separates human trafficking offenses from those that may otherwise be classified as “ordinary criminality.“ The main goal is to help and bolster Azerbaijani criminal law in investigating cases that constitute human trafficking crimes and to ensure the proper execution of Article 7 of the Rome Statute by resolving issues with the identification of human trafficking convictions in court cases and other jurisdictions required by the Criminal Code of Azerbaijan.
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