Human Trafficking in the Context of Global Migration: Modern Manifestation of De Facto Slavery, Servitude and Forced or Compulsory Labour

In recent years there has been a significant increase in trafficking in human beings as a global phenomenon. COVID-19 pandemic created conditions that increased the number of persons who were vulnerable to human trafficking and disrupted current and planned anti-trafficking initiatives. Human trafficking treats human beings as commodities to be bought and sold and put to forced labour often for lower or no payment. This constitutes a modern form of de facto slavery, servitude and forced or compulsory labour. This article provides an overview of international law on human trafficking and considers response to human trafficking in Africa. It further considers whether diplomats can be held accountable for exploitation of migrant domestic workers in receiving States. It further examines whether diplomatic immunity can be used as a bar to the exercise of jurisdiction by domestic courts and tribunals of a state which hosts the diplomat (the ‘receiving state’) in cases of employment of a trafficked person by a former or serving diplomat. It ends by considering whether trafficked persons should be held to bear individual criminal responsibility for crimes they have committed (or were compelled to commit) in the course, or as a direct consequence, of having been trafficked. Such crimes may include unlawful entry into, presence or residence in another country of transit or destination, working without a work permit, sex work, and use of false identity/false passport.

Ne bis in idem in the jurisprudence of the European Court on Human Rights with special emphasis on the case Milenković v. Serbia

In comparative and domestic case law, individuals are often being criminally prosecuted for actions that also contain elements of misdemeanours or other administrative or disciplinary offenses, for which they have already been trialed and even punished. This is evidentially a violation of the ne bis in idem principle, which represents not only one of the basic pillars of criminal law, but also internationally protected human right. Therefore, through analysis of the case law of the European Court of Human Rights, in particular Milenković v. Serbia case, together with the stands of domestic courts on the topic at hand, it will be illustrated that inadequate application of the prohibition against double jeopardy necessarily leads to inadequate criminal protection, shortage of just satisfaction for victims and undermining of legal certainty.

Blame the Drafter or the Treaty? Towards Uniformity in the Implementation of Treaties in Domestic Law.

<p><b>Domestic courts are often confronted with circumstances in which their interpretation of municipal legislation which purports to implement an international treaty differs significantly from that of other jurisdictions that have implemented that same treaty. States parties often come to realise these differences when they are called upon to cooperate in facilitating the execution of the relevant treaty. This is clearly undesirable as it defeats the purpose of treaty negotiation which is to attain consistency in approach amongst states parties.</b></p> <p>This dissertation proposes a solution to that problem. It is based on the hypothesis that uniformity in the drafting techniques used to implement different types of international treaties will eliminate, or at least reduce, the incidence of domestic legislation's deviating from the true intentions of the treaty it proposes to implement. The dissertation tests this hypothesis by examining the approach taken by different jurisdictions in implementing selected treaties. The study reveals that there is merit to the hypothesis. However, there are several factors which determine which drafting technique will best implement the terms of a treaty in a particular jurisdiction. Therefore, the same implementation technique may not be suitable for all contracting states. What is required is a structured approach to treaty implementation. This comes with an appreciation of the factors that will indicate and should be used to determine which drafting technique is the most suitable.</p> <p>By way of solution to the problem posed, a guide is formulated. It provides a set of best practices for treaty implementation.</p>

Blame the Drafter or the Treaty? Towards Uniformity in the Implementation of Treaties in Domestic Law.

<p><b>Domestic courts are often confronted with circumstances in which their interpretation of municipal legislation which purports to implement an international treaty differs significantly from that of other jurisdictions that have implemented that same treaty. States parties often come to realise these differences when they are called upon to cooperate in facilitating the execution of the relevant treaty. This is clearly undesirable as it defeats the purpose of treaty negotiation which is to attain consistency in approach amongst states parties.</b></p> <p>This dissertation proposes a solution to that problem. It is based on the hypothesis that uniformity in the drafting techniques used to implement different types of international treaties will eliminate, or at least reduce, the incidence of domestic legislation's deviating from the true intentions of the treaty it proposes to implement. The dissertation tests this hypothesis by examining the approach taken by different jurisdictions in implementing selected treaties. The study reveals that there is merit to the hypothesis. However, there are several factors which determine which drafting technique will best implement the terms of a treaty in a particular jurisdiction. Therefore, the same implementation technique may not be suitable for all contracting states. What is required is a structured approach to treaty implementation. This comes with an appreciation of the factors that will indicate and should be used to determine which drafting technique is the most suitable.</p> <p>By way of solution to the problem posed, a guide is formulated. It provides a set of best practices for treaty implementation.</p>

Investigating Extra-territorial Human Rights Violations in Conflict: A Principled Disharmony

<p>This paper discusses a sequence of litigation concerning attempts by Iraqi citizens to have the United Kingdom Government investigate their claims of ill-treatment and death by British soldiers during the six-year British occupation of Basra, Southern Iraq. This paper uses the litigation as a foil to examine broader issues arising from the extra-territorial application of the duty to effectively investigate rights violations under the European Convention on Human Rights, an unprecedented occurrence. Specifically, it compares the duty of effective investigation to comparative institutional responses to human rights violations in conflict. These mechanisms have developed a broader set of victim-oriented objectives in dealing with violations and this paper argues the duty of effective investigation is comparatively deficient. It then looks at the manner in which the domestic courts have applied the duty, arguing that the various factors have driven the High Court to adopt a limited model of investigation.</p>

Investigating Extra-territorial Human Rights Violations in Conflict: A Principled Disharmony

<p>This paper discusses a sequence of litigation concerning attempts by Iraqi citizens to have the United Kingdom Government investigate their claims of ill-treatment and death by British soldiers during the six-year British occupation of Basra, Southern Iraq. This paper uses the litigation as a foil to examine broader issues arising from the extra-territorial application of the duty to effectively investigate rights violations under the European Convention on Human Rights, an unprecedented occurrence. Specifically, it compares the duty of effective investigation to comparative institutional responses to human rights violations in conflict. These mechanisms have developed a broader set of victim-oriented objectives in dealing with violations and this paper argues the duty of effective investigation is comparatively deficient. It then looks at the manner in which the domestic courts have applied the duty, arguing that the various factors have driven the High Court to adopt a limited model of investigation.</p>

‘The Court is Accommodating our Murderers’: Prosecuting Aged Defendants in Domestic Courts in Bosnia and Herzegovina

Although the war in Bosnia and Herzegovina ended a quarter of a century ago, a large number of war crimes suspects are still being prosecuted. One of the visible issues arising in domestic courts are aged defendants, whose trials are delayed due to old age and illness. The aim of this article is to give an overview of case law and analyze the process of prosecuting aged defendants at the War Crimes Chamber within the Court of Bosnia and Herzegovina, which carries the largest workload of war crimes cases in the region. This article focuses on two main aspects: portrayal of these cases in the media and the legal reasoning of the court.