Migrant Workers, the Death Penalty and Human Trafficking
India’s Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018 is not consistent with international human rights standards. The Bill fails to identify and protect Indian migrant workers trafficked out of the country. It fails to incorporate the non-punishment principle and allows for criminalization of victims of human trafficking for crimes that they were compelled to commit. In some cases, these victims risk being executed for crimes they were forced to commit by their traffickers. Click here for our full submissions.
Reprieve’s work indicates that South Asian migrant workers may be disproportionately sentenced to death in the Gulf following patently unfair trials, in violation of international law and domestic safeguards. For instance, since 2014, 37% of the persons executed in Saudi Arabia were foreign nationals, a large number of who were South Asian nationals.
There are indicators suggesting that a number of foreign nationals either executed or facing execution may have been victims of human trafficking, who were compelled to commit crimes. There is consensus in the international community that victims of human trafficking should not be punished in any form – including prosecution, detention or imprisonment – for crimes related to their trafficking, i.e., the non-punishment principle. However, despite wide recognition of the non-punishment principle, the status of these foreign nationals as victims of human trafficking has not been investigated into by the sending or the detaining state, leading to arbitrary deprivation of life and imposition of capital punishment on individuals who have reduced moral culpability and penalizing a victim for crimes related to their status as a trafficked person.
“We are gravely concerned about the Bill as presented by the Government to the Indian Parliament on 18 July. Its focus on addressing trafficking from a criminal law perspective is not sufficiently complemented by a human-rights based and victim-centred approach, and this risks further harming already vulnerable individuals,”
Our work in the region suggests that migrant workers are disproportionately targeted in the application of the death penalty for drug offences in several jurisdictions. For instance, since 2014, 67% of the persons executed for drug offences in Saudi Arabia have been foreign nationals. As on September 2017, 20 of the 25 Indian nationals on death row in Kuwait had been convicted for drug trafficking.
First, there is widespread consensus that drug offences do not meet the “most serious crimes” threshold mandated under international law. Further, it appears that there is a nexus between human trafficking practices, the exploitation of persons as forced drugs mules, and the application of the death penalty for drug offences. There are indicators to suggest that a number of migrant workers facing the death penalty for drug offences may have been victims of human trafficking, who were vulnerable people who were forced to act as ‘drug mules’ to transport drugs across the border.
In some cases, people were forced into smuggling drugs in their intestines. In at least 10 cases identified by Reprieve in 2017, South Asian nationals were executed for smuggling narcotics or psychotropic substances that were ingested. In similar cases, the UN has raised concerns with the Kingdom of Saudi Arabia that such practices may be indicators that the defendants were subject to human trafficking, calling on the Kingdom to immediately conduct a review of such death sentences.
There have also been a number of cases where domestic workers have been sentenced to death for committing murders of their employer or employer’s family members. We are concerned that in some instances, these domestic workers might have been victims of human trafficking, who were compelled to commit the crime under deeply abusive and exploitative working conditions that amount to forced labour. There are indicators that some of these women were unwitting victims of recruitment agencies who act as a front for human trafficking.
In light of these concerns, it is imperative for the Indian law to clearly enunciate the non-punishment principle for victims of human trafficking and introduce mechanisms to identify and protect victims of human trafficking, in consonance with international human rights standards. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, in its current form, falls short of these obligations and lacks provisions to prevent trafficking, identify and protect victims, and ensure that they are not punished in any form for crimes related to their trafficking.