Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis

Abstract

In countries around the world it is common practice for victims of trafficking who have been "rescued" or who have escaped from situations of exploitation to be placed and detained in public or private shelters. The term "detention", as used in this context, refers to a very specific situation in which the individual concerned is unable to leave the facility if and when she or he chooses to. In some cases, shelter detention is a short-term measure that may be prompted by concerns about victim wellbeing or safety. In the most egregious situations, victims can be effectively imprisoned in such shelters for months, even years.

This Study considers the international legal aspects of victim detention in shelters and weighs up the common justifications for such detention from a legal, policy and practical perspective. It is based on desk research of shelter practices in a number of countries and more direct exposure to shelters through field based research undertaken principally in South East Asia. The Study concludes that routine detention of victims or suspected victims of trafficking in public or private shelters violates a number of fundamental principles of international law and is therefore to be considered, prima facie, unlawful. Failure of the State to act to prevent unlawful victim detention by public or private agencies invokes the international legal responsibility of that State.