Victim Identification and Anti-Trafficking Strategies in Azerbaijan Research Paper

Introduction

Research Question

What significant steps must be taken to improve the process of identification in Azerbaijan and adapt to the best practice 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. The statistics show that the issue has been a concern for people and that the need for a solution increases daily. 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. Slavery society appeared at the beginning of human civilization, culminating 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 the 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, they also go through psychological, mental, and emotional torture. Beyond doubt, the crime’s ramifications continuously overwhelm and transform the victims’ lifestyle. 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 in persons consist of women and young girls, and 90% of those victims are trafficked for sexual exploitation.

The victim identification process is the most vital problem in human trafficking crimes. The identification of victims must be done thoroughly, attentively, and with absolute care and thought since, in the crime of trafficking in persons, the concept of “re-victimization” frequently harms and hurts the victim. Therefore, this research paper contains the problems of identification and re-victimization processes and 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, identification challenges, human trafficking in Azerbaijan, and conclusion. Eventually, the paper aimed to answer several questions:

1. How can we increase public awareness and implement new systems to prevent trafficking in persons?
2. 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 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 several 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

This paper used an example of qualitative research, 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, focusing on Azerbaijan. In addition, the research looked at cases of human trafficking in Azerbaijan’s criminal justice system.

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 broad 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 pointed toward the identification process in the case of Azerbaijan and serves as a practical resource for policymakers.

Results

Types and Methods

Coercion, kidnapping, deceit, deception, assault of power or authority, vulnerability, or the exchange or acceptance of payments or benefits 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 care for the house. At the same time, men should work to provide financially for the family.

Women who lost their male breadwinners via 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 to 2003 show that migrants of both sexes face a high risk of sexual exploitation.

Stereotyping in Victim Identification

Stereotypes may occasionally happen during the identification of victims of human trafficking. For instance, it may occur when law enforcement officials or other experts participating in the identification process depend on preconceived beliefs or assumptions about the appearance or origins of a trafficking victim. These prejudices may be based on the victim’s socioeconomic class, gender, age, country, or ethnicity. One popular myth, for instance, is that victims of human trafficking are always immigrants or people of foreign descent. As such, local victims or individuals who have lived in a given nation for a considerable amount of time may go unnoticed or be mistakenly recognized. Similar to this, individuals who differ from the typical image of a trafficking victim—like adult males—might also go unnoticed.

Law enforcement officials and service providers agree that a lack of understanding about the crime of human trafficking complicates the issue, even though the crime’s concealment is a significant barrier. In this regard, even if victims were more obvious, most members of the general public would not identify a victim. A majority of individuals do not think that human trafficking occurs in today’s culture, particularly in their own areas. There is still uncertainty about who constitutes a victim, even in those places where awareness-raising initiatives have been attempted.

The preconceived notion of international sex trafficking still holds true, not only among the general populace but even among certain members of law enforcement and service providers. In other words, victims are seen as young, immigrant women who are coerced into prostitution. Therefore, it was obvious that there is a general lack of awareness and understanding that domestic human trafficking may occur. Neither the majority of providers nor law enforcement is particularly aware of the likelihood that prostitution of Azerbaijani adolescents falls under the category of human trafficking.

The absence of an awareness of the crime of human trafficking and its victims is suggested by many participants in the research, by recent popular media depictions of high-profile instances and human trafficking offenses. The lack of attention paid to domestic victims, such as Azerbaijani citizens or legal permanent residents, male victims, and labor trafficking, is acknowledged as contributing to the misunderstandings about this crime.

Many victims—domestic or foreign—do not think they are the victims of human trafficking. This is often a result of their lack of knowledge about human trafficking, comprehension of it, and awareness of their rights as victims. Law enforcement officials who have assisted victims claim, however, that those victims of human trafficking are regularly informed by their traffickers that they are to blame for their predicament. As such, many victims accept the traffickers’ depiction of reality as true because of their own previous and present experiences.

In other circumstances, victims have become reliant on their traffickers and see them as protectors or, in rare instances, partners. In this regard, service providers liken human trafficking to the Stockholm Syndrome that prisoners of war go through. In these situations, the victim not only does not identify with the victim role, but also does not think their trafficker has broken any laws.

The contact with law enforcement and anyone seeking to aid them is often unfavorable and even confrontational when a victim does not see themselves as a victim. Law enforcement officials and certain shelter operators claim that this was particularly true for domestic underage sex trafficking victims. However, victims are not the only group that does not always see themselves as prey.

Lack of recognition by certain law enforcement officials that someone is a victim of trafficking is another obstacle to victim identification. An example is where victims are regarded as criminals, subjected to deportation proceedings, and are first seen as undocumented or illegal immigrants. Other times, victims—even those who were minors—are treated like prostitutes, accused of solicitation, and imprisoned or detained. These incidents support the traffickers’ message that their victims would be treated like criminals if they alert the police, support the victims’ belief that they are to blame, and strengthen the traffickers’ authority and control over their victims.

Country Tiers in Human Trafficking

The U.S. Department of State’s Trafficking in Persons (TIP) Report divides the world into four categories based on how hard a country works to prevent human trafficking. By highlighting those nations that are making major efforts to fight trafficking and those that are not, the Tier rating system motivates nations to address the issue of human trafficking. Tier 1 nations are those whose governments have shown they are making significant efforts to fight human trafficking and adhere to the basic requirements for its abolition. Such nations follow the following procedures in acting against human trafficking:

• Adopting and implementing anti-trafficking legislation and regulations that follow international guidelines and handle all types of trafficking.
• Conducting comprehensive investigations into incidents of trafficking and bringing charges against and punishing traffickers, including any potential complicit government officials.
• Giving victims of trafficking extensive and specialized help, such as medical attention, counseling, and legal support.
• Participating in preventative initiatives to increase public awareness of the risks associated with human trafficking and to address its underlying causes, such as poverty and gender inequality.

Tier 1 nations have shown a strong commitment to stopping trafficking, and as a consequence, have made substantial strides in stopping it, punishing traffickers, and safeguarding victims. It is crucial to remember that no nation is fully free of human trafficking, and Tier 1 nations must keep stepping up their efforts to do so.

Countries in Tier 2 are those whose governments have made substantial efforts to fight trafficking but have not yet completely complied with the requirements for its abolition. Although these nations may have achieved some strides, their anti-trafficking initiatives still have a long way to go. The following are some of the difficulties encountered by Tier 2 countries:

• Inadequate budget and staff for anti-trafficking initiatives.
• Poorly constructed legal systems or the improper application of current laws and regulations.
• Weak law enforcement activities, including a dearth of inquiries into and convictions involving incidents of trafficking.
• Insufficient victim support and services, including limited or inconsistent victim aid.
• Insufficient preventative measures, such as the absence of public awareness campaigns and the failure to adequately address the underlying causes of trafficking.

The fight against trafficking is acknowledged in Tier 2 nations, but they are urged to step up their efforts to completely satisfy the requirements for the abolition of trafficking. A Tier 2 nation may be demoted to the Tier 2 Watch List or Tier 3 if it does not demonstrate sufficient progress or regresses in its anti-trafficking efforts. Countries on the Tier 2 watch list are those whose governments do not completely meet the minimum standards but are making significant efforts to do so, and one of the following conditions is met:

• The total number of victims of severe forms of trafficking is very significant and is significantly rising.
• There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or
• It is determined that a country is making significant steps towards addressing harsh forms of trafficking in persons.

The lowest category, category 3, in the U.S. Department of State’s TIP Report comprises nations whose leaders have not completely complied with the requirements for the abolition of trafficking and have not made notable efforts in that direction. Tier 3 nations have shown a lack of political will or effort in the fight against trafficking and may potentially be involved in it or its exploitation.

The Trafficking Victims Protection Act (TVPA) imposes the harshest penalties on Tier 3 countries, including withholding non-humanitarian and non-trade-related foreign aid and opposing the granting of specific types of loans from international financial institutions. The American government may also take measures to limit the travel of officials from Tier 3 nations to the U.S. The Tier 3 ranking is meant to motivate countries to take more aggressive measures to stop trafficking and protect their victims. Tier 3 nations may get technical aid and support to strengthen their anti-trafficking initiatives, but they also come under heightened international scrutiny and criticism.

In the 2005 and 2006 TIP Reports, Azerbaijan’s lack of progress in combating human trafficking led to the designation of the nation as a Tier 3 country. The TIP Reports specifically pointed out that Azerbaijan lacked anti-trafficking laws and a national anti-trafficking action strategy. Inadequate funding and ability to combat trafficking, as well as corruption and collusion among certain government officials, were among the issues raised in the investigations.

Azerbaijan did, however, make substantial strides against trafficking in the years that followed, and as a result, it was promoted to Tier 2 in the 2007 TIP Report. Since then, the nation has maintained its Tier 2 ranking and has continued its anti-trafficking efforts, enacting anti-trafficking laws and developing a nationwide referral system for trafficking victims. Although Azerbaijan has made strides, the issue of trafficking in the nation remains a concern, especially in light of forced labor in the agricultural industry and the exploitation of young girls and women in prostitution. These problems highlight the significance of continued efforts to enhance victim care and protection services, strengthen anti-trafficking laws and regulations, and resolve the causes of trafficking in Azerbaijan and other nations throughout the globe.

Problems of Shelters in Azerbaijan

The MIA is in charge of the Baku State refuge, a secure location for victims of trafficking and witnesses to crimes who are helping the authorities with their investigations. All adult men, girls, and children stay in the same structure. Since the children’s facilities were created on the third level in 2009, the shelter has accommodated two children out of a maximum of 54.

The MIA Counter-trafficking Main Department spent USD 120,000 remodeling the shelter in 2014. There are reports that state-operated shelters are empty, while shelters run by non-governmental organizations (NGOs) are overcrowded and lack enough funding. The Azerbaijani MIA claimed, however, that 90-95% of victims reside in State shelters, with the latter also providing victims with housing in leased flats and security, when necessary.

From 2006 to 2015, officials reported sheltering approximately 400 persons, including 51 in 2015 alone, with eight men and 43 women. According to the report, 14 people were the maximum number of people who could stay at any one moment. While NGO shelters were almost at capacity at the time of the report, the State shelter only had five residents, where MLSPP placed all male victims of labor exploitation. This discrepancy has been attributed to a number of factors, including the fact that shelters only house people who have been formally recognized as victims of trafficking or who agree to cooperate with law enforcement. This is done despite Article 13.3 of the Law of the Republic of Azerbaijan on Trafficking in Persons stating that victims can stay in shelters for up to 30 days regardless of whether they cooperate with law enforcement agencies.

At one point, during the verification process, the MIA challenged the shelter rules, claiming that they help both cooperative and non-cooperative victims. As such, Shelter workers from non-governmental organizations confirmed that the state shelter would not house victims who refuse to comply with authorities. According to a report concerning the implementation of the Council of Europe Convention on Action against trafficking in Human Beings, in Azerbaijan, most victims feel more comfortable in NGO-run shelters, and their needs are better met. As one respondent put it, “victims, particularly women, feel isolated” in the high-security state shelter because residents normally do not leave alone (they are under “the protection of the State”), but at NGO shelters, residents have greater flexibility to roam about.

The Republic of Azerbaijan’s private shelter system is in a terrible state. Four non-governmental organizations in Azerbaijan (Baku’s Azerbaijan Children Union, Ganja’s Tamas, and Baku’s Azerbaijan Migration Centre) provide refuge to trafficking victims. They are all battling to stay open, and many of their employees are volunteers. It is difficult for these NGOs to get money from the state due to statutory hurdles to fundraising from local or foreign donors.

The MLSPP releases bids for NGO services on a recurrent basis, but thus far, shelters have not benefited from these opportunities. Only the Clean World Public Union, which serves victims of domestic abuse, has been granted certification, but there is no such system in existence for anti-trafficking shelters. The Council on State Support to NGOs, which operates under the auspices of the President of the Republic of Azerbaijan (NGO Support Council), is another potential funding source. It issues biannual tenders to local and international NGOs working on a variety of topics, including anti-trafficking, though it has focused primarily on awareness-raising thus far.

Those in need of a safe place to stay, such as child victims of trafficking or their mothers, may turn to the Azerbaijan Children’s Union shelter. There are presently 13 children residing at the shelter, and some of them are unaccompanied youngsters under the care of the NGO’s Chairwoman. Former international organization funders are no longer present in the Republic of Azerbaijan, making it impossible to get money from foreign sources per the Law on Grants. Applications for financing under the MLSPP have been denied, and the state provides no financial or in-kind assistance. In this context, the shelter has trouble making ends meet and depends on donations from the community, which may dry up if the economic situation in the Republic of Azerbaijan deteriorates.

The Azerbaijan Migration Centre provides a safe haven for exploited male migrant laborers and victims of human trafficking, with a primary emphasis on irregular migration. The shelter is an informal agreement with the landlord of a modest flat that can house up to six people. In 2015, four people allegedly needed a safe place to stay. Employees are now serving in a volunteer capacity. Women who have been trafficked or are at high risk of being trafficked are housed by the Clean World Public Union, while men are sent to the Azerbaijan Migration Centre.

The Clean World Public Union also engages in community service programs aimed at helping marginalized groups, including sex workers. The refuge can now house up to 15 individuals, but will shortly relocate to a bigger location. There have been reports of serious financing problems, including the departure of workers due to nonpayment and the disappearance of previous contributors as a result of compliance with funding requirements.

However, suppose one is a victim of domestic abuse. In that case, the Clean World Public Union is a safe place to go since it has MLSPP certification. Staff and residents discussed the difficulty in receiving contributions due to the stigmatization of former prostitutes and exploited individuals, and how this has forced them to look for other means of support. Since 2013, Tamas has run a shelter in Ganja that accepts women who have been recommended by other NGOs or state institutions or who have applied on their own. Due to difficulties in securing finance, the organization relies on volunteers in the same way that other non-governmental organizations do.

Some employees of NGOs also have positions with government agencies, creating tension as they try to serve the best interests of their employers. The analysis found that the director of a state-run shelter in Azerbaijan was also the union’s chairwoman. Some people’s only source of income is their employment with government agencies. The MIA pointed out that having non-governmental organization (NGO) workers in secret facilities is not against the law.

However, the situation is particularly dire due to the lack of access to State money and the new legal framework banning non-state investment from local and international sources. It is a great accomplishment of dedicated individuals who get little or no compensation for their labor and who rely on alternate forms of employment to continue providing services to victims of trafficking and other vulnerable persons. The current state of affairs is untenable and calls for immediate action.

Re-Victimization in the Identification Process

In the victim identification procedure for human trafficking in Azerbaijan, re-victimization is a big issue. When victims of trafficking are mistreated or exposed to further damage by the police, others, or both during the identification process or subsequent legal processes, this is known as re-victimization. Azerbaijan has a number of conditions that make it more likely for victims of human trafficking to become victims again. The lack of education and knowledge among law enforcement officers and other authorities on how to correctly identify and aid victims of trafficking is a major problem. As a consequence, victims could be wrongly identified or charged with crimes like prostitution or illegal immigration that are connected to their trafficking.

Instead of obtaining the necessary protection and assistance, this may result in the arrest, detention, or deportation of the victims. The dishonesty and collaboration of certain government officials in Azerbaijan are other elements that repeatedly fuel victimization. Officials who participate in human trafficking in return for bribes or other perks fall under this category. These authorities may purposefully try to thwart attempts to locate and aid trafficking victims, or they may just do nothing when victims come forward.

In Azerbaijan, victims of trafficking may also experience shame and prejudice from the larger community, especially from relatives and neighbors. This may make it challenging for victims to get the help and resources they need, and it may also pave the way for further exploitation and abuse. In accordance with Article 15 of the Law on Combating Trafficking in Human Beings, trafficking victims may receive social rehabilitation. The MLSPP created the Victim Assistance Centre in 2005 in accordance with Articles 12.1 and 14, and it started operating in 2009. It is a specialist facility that offers victims the same psychological, medical, and legal guidance as the MIA shelter, with the exception that the former also helps victims obtain work and continue their education.

Although it has not yet done so in practice, the Centre is capable of offering legal advice and representation in Court. Victims who directly contact the Centre and identify themselves as such are intended to get aid from it. The Center has received 142 referrals from the Counter-Trafficking Main Department since 2012, most of which were for help finding jobs and continuing their studies. The MIA added that NGOs frequently direct victims to the Center for help services during validation.

The Victim Assistance Center has received acclaim from NGOs for its reintegration services, which include vocational training, and for its effective engagement with civil society. “Persons who have suffered trafficking in persons are exempt from civil, administrative, or criminal liability for offenses committed under coercion or intimidation while they were victims of trafficking in persons,” states Article 17.7 of the Law on Trafficking in Human Beings.

As a result, GRETA emphasizes the need for relevant actors, such as prosecutors and the judiciary, to put the non-punishment principle into practice. In practice, GRETA has noted that there is confusion between sex workers who violate administrative laws on prostitution and victims of trafficking. Similar misunderstandings arise between irregular migrants and trafficking victims, who run the danger of deportation if not recognized as victims. When migrants are discovered living irregularly in the Republic of Azerbaijan, they must leave the nation within 48 hours or risk being arrested by the State Migration Service.

While the State Migration Service must advise these migrants of their legal options, it is not compelled to provide them with access to counseling or legal representation. Foreign nationals are often deported without having access to legal representation to contest deportation orders in Court, according to GRETA. The MIA indicated during validation that it strongly disagreed with these GRETA results, which caused the victim to become victim again.

Rehabilitation of Victims of Human Trafficking

In accordance with Decision No. 62 of 2006 on Regulations on the Social Rehabilitation of Victims of Human Trafficking, the MIA, the Ministry of Health, and the MLSPP are responsible for providing victims with rehabilitation services. Following Decision No. 123 of 2009, social rehabilitation and reintegration are to be carried out by means of specialized institutions working in conjunction with government ministries. Reportedly, the government assisted 53 victims by providing them with a one-time grant of AZN 400 (USD 250) in 2014, while providing 24 victims with employment and 35 with vocational training.

The state budget provides funding for social rehabilitation to reintegrate victims into society and ensure that they have access to legal aid, education, psychological, physical, and professional restoration; in addition, they are able to find employment and a place to live. In addition, a program from 2014 to 2016 will aid child victims and their families by monitoring their progress toward social integration. This program will focus on the social rehabilitation and reintegration of child victims.

The Ministry of Education is an important stakeholder since it has not one but two ministries and seven divisions dedicated to assisting victims of human trafficking, in contrast to other stakeholders that only have a single clear focus point. On the other hand, civil society groups have been reported to be dissatisfied, especially in reference to the fact that just one kindergarten has been designated for the children of trafficking victims. However, non-governmental organizations (NGOs) do not get sufficient or continuous financial assistance from the state to participate in rehabilitating and reintegrating victims into society. This does not exclude them from playing a role in these processes. During the validation process, the Ministry of the Interior said that the MLSPP Victim Assistance Centre continues to receive insufficient funding and has few available resources.

Human Trafficking Concept in International Criminal Law

History and Development

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.

Contextual Elements

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 created 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 assault itself.

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 the Court hears.

The International Criminal Court, one of several such organizations, adopted the Rome Statute to address and have broad 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.” 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.

Widespread and Systematic Nature of Attacks

Human trafficking and attacks on innocent civilians are typically both widespread and systematic, as they target large numbers of people who are especially vulnerable to these kinds of abuses due to their weakness 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 extends 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. According to 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 attacker knew all of these things. This suggests the perpetrator was aware of the assault, although he or she may not have known all the specifics of the assault or the government’s or the company’s policy.

Problems with the Identification Process

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 effectiveness 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 their rehabilitation and reintegration into society as a whole. It has been noted that the effectiveness and quality of prosecutions might suffer when victim assistance is too tightly linked to criminal justice responses to trafficking in people. Victims must be treated as people in need of help and support, rather than being treated as witnesses in such crimes.

When it comes to the criminal justice system, Deanna 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. Jessica 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 witnesses. For a variety of reasons, victims may not come forward, including:

1. 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 the police by traffickers.
2. 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.
3. 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 recover 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 a dismissal 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 a victim 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.

The Identification of Human Trafficking Victims Under Azerbaijan’s Criminal Code: Missing Elements

Mens Rea of Human Trafficking

Human trafficking requires an intentional act, or mens rea, to be committed. The mens rea requirement represents the accused’s mental condition. In this instance, the lack of mens rea likely results from inadequate mens rea criteria under Azerbaijani criminal law, which should call for the offender to have “the knowledge of the attack.” The ‘mental’ component, or the need for mens rea on the side of the accused, plays an important role in setting crimes of 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 of human trafficking has been established by The Elements of Crimes, which requires 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.” Article 30 of the ICC Statute defines “knowledge” as “knowing that a condition exists or a consequence will arise in the regular course of occurrences.”

The phrase “forced labor” raises images of physical or psychological compulsion. The phrase “compulsory work” cannot 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 Article 4 of the Convention because one of the parties has promised to do it and will face consequences if they break their word.

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 considered all the case’s facts. It noted that, under certain conditions, a person might not view “service as having been willingly accepted previously” by a person. In light of all the relevant facts, evaluating the legitimacy of the consent is necessary. The Court focused on the idea of “consent” in the case of Chowdury and Others, highlighting that “when an employer abuses his position or takes advantage of his employees’ fragility 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.

The case of Zoletic and Others v. Azerbaijan involves allegations of human trafficking in the country. The applicants, who were Croatian nationals, claimed that they had been deceived by a man named “H” into traveling to Azerbaijan under the pretense of working in a hotel. However, upon arrival, they were subjected to forced labor and exploitation, working long hours without pay and living in poor conditions. The applicants alleged that they had been victims of human trafficking and that the Azerbaijani authorities had failed to investigate and prosecute the offenses committed against them. They argued that Azerbaijan’s legal framework did not require proof of mens rea in cases of human trafficking, which made it difficult for prosecutors to hold perpetrators accountable and for victims to seek justice.

Mens rea, or the intention or knowledge of a criminal offense, is a critical element of criminal law. In cases of human trafficking, mens rea is often difficult to prove, as traffickers may use deceptive tactics to recruit and exploit their victims. In many jurisdictions, including Azerbaijan at the time, proof of mens rea was not required to establish the offense of human trafficking.

The European Court of Human Rights (ECtHR) found that Azerbaijan had violated Article 4 of the European Convention on Human Rights (ECHR), which prohibits slavery, forced labor, and human trafficking. The Court noted that the lack of a mens rea requirement in Azerbaijan’s legal framework was not in line with international standards and best practices, and that it contributed to a culture of impunity for human trafficking offenses.

The ECtHR emphasized that effective investigation and prosecution of human trafficking cases requires a robust legal framework that includes clear and enforceable standards for mens rea. The Court highlighted the importance of aligning national laws with international standards and best practices, and called on Azerbaijan to take measures to ensure that victims of human trafficking can access justice and receive adequate protection and support.

The Zoletic case is significant in that it highlights the challenges of combating human trafficking and the importance of having effective legal frameworks in place to address this issue. Human trafficking is a complex and multifaceted problem that requires a coordinated and comprehensive response from governments, civil society, and other stakeholders.

Effective legal frameworks for dealing with human trafficking must include provisions that criminalize the offense, provide for the protection and support of victims, and ensure that perpetrators are held accountable. These frameworks must also mention distinct and enforceable standards for mens rea, as this is critical for ensuring that perpetrators are brought to justice and that victims can access the support and resources they need to recover from the trauma of trafficking. In addition to legal frameworks, combating human trafficking also requires a range of other measures, including prevention efforts, awareness-raising campaigns, and victim-centered approaches. Prevention efforts may include addressing root causes of trafficking, such as poverty and inequality, as well as efforts to raise awareness about the risks and consequences of trafficking.

Victim-centered approaches to eliminating human trafficking are critical for ensuring that victims are treated with dignity and respect, and that their needs and rights are prioritized. This may include providing access to legal representation, medical care, and other support services, as well as working to ensure that victims are not re-trafficked or otherwise revictimized. It is also important to ensure that victims have access to justice and that their voices are heard in the criminal justice process.

Addressing human trafficking requires a comprehensive and collaborative approach that involves multiple stakeholders, including governments, civil society organizations, and the private sector. Governments play a critical role in establishing legal frameworks and providing resources for prevention and response efforts. Civil society organizations, including non-governmental organizations (NGOs), play a critical role in providing support services to victims and raising awareness about the issue. The private sector also has a role to play, particularly in preventing forced labor and other forms of exploitation in global supply chains.

As such, the Zoletic case underscores the importance of ensuring that legal frameworks for addressing human trafficking are aligned with international standards and best practices. This requires ongoing efforts to update and strengthen legal frameworks and provide training and resources to law enforcement officials, prosecutors, and judges to ensure that they can effectively investigate and prosecute human trafficking cases. In addition to legal frameworks, other measures can be taken to address human trafficking. These include efforts to improve the economic and social conditions that make individuals vulnerable to trafficking, such as poverty and lack of access to education and employment opportunities. Other measures may include efforts to address corruption, which can facilitate trafficking, as well as efforts to increase awareness about the issue and to reduce demand for exploitative labor and services.

Missing “Internalizing” Elements

While human trafficking has been recognized as a serious problem for many years, it remains a significant challenge to address. One reason for this is the missing “internalizing” elements of trafficking, which refer to the psychological and emotional impact that trafficking can have on its victims. These elements are often overlooked in discussions about human trafficking, but are essential to understanding the full impact of this crime and the measures needed to address it.

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 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 obstacle for any future prosecution of trafficking cases. Because “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 for the Government of Azerbaijan

The following steps aim to fill in some of these blanks in victim identification for the Government of Azerbaijan:

1. Create and spread methods for locating victims of exploitation of any kind.
2. Make sure that tools and resources are developed and personalized with children in mind.
3. Give specific recommendations for promoting gender equality in victim identification.
4. Check that male victims are not excluded from any identifying procedures or materials.
5. Ensure that materials for identifying people do not reinforce harmful gender stereotypes, assumptions, or agreements.
6. Take into account and evaluate various victim features and vulnerabilities.
7. Recognize and handle linguistic challenges in victim identification.
8. 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.
9. 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-day reflection period. The reflection time is dependent on the victim separating links with the traffickers and agreeing to get help from a designated facility. The victim should be provided proof of residence for at least six months before making a statement.

After inquiring with the Prosecutor’s Office two months before 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 review. Both 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 offences from those that may otherwise be classified as “ordinary criminality.” The main goal is to help and strengthen the 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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3. S.M. v. Croatia [GC], no. 60561/14, (2020), § 335. Web.
4. Chowdury and Others v. Greece, no. 21884/15, § 90 (2017). Web.
5. Van der Mussele v. Belgium, 23 November 1983, § 33, Series A no. 70. Web.
6. Prosecutor v. Tadic, Judgment, IT-94-1-T, 649 (ICTY Trial Chamber, 1997). Web.

Treaties and Statutes

1. Criminal Code of the Republic of Azerbaijan. Web.
2. European Union: Council of the European Union, Council Directive 2004/81/EC of 29 April 2004 on the Residence Permit Issued to Third-Country Nationals Who are Victims of Trafficking in Human Beings or Who Have Been the Subject of an Action to Facilitate Illegal Immigration, Who Cooperate With the Competent Authorities, 2004, OJ L. 261/19-261/23; 2004/81/EC. Web.
3. Office of the High Commissioner for Human Rights (OHCHR), Recommended Principles and Guidelines on Human Rights and Human Trafficking (2003), p. 4. Web.
4. GENERAL Assembly Resolution 55/25. “Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime.” OHCHR, 2023. Web.
5. International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977, 1125 UNTS 3. Web.
6. International Criminal Court (ICC), Elements of Crimes, 2011. Web.
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