ALSA 2025 meeting

Among the various forms of exploitation experienced by trafficking victims, forced criminality ranks as the third most prevalent. Victims are coerced into a wide range of criminal activities, from petty theft to drug trafficking, online scams, and even murder. When the victims are recued or managed to escape the traffickers’ control, they often face prosecution by domestic judicial systems and are held responsible for the crimes they were compelled to commit. In addition to fines or imprisonment, criminal records impose lasting barriers to rehabilitation. This raises a fundamental question: are the human rights of trafficking victims truly respected when they are punished for acts committed under coercion?

The “non-criminalization principle,” as invoked in instruments like the Recommended Principles and Guidelines on Human Rights and Human Trafficking, seeks to address this issue. However, treaties and legislations do so in a general and aspirational manner, without providing a more specific guidance on its implementation, which may consequently undermine the practical effectiveness in protecting victims and upholding justice. This issue is especially pressing in parts of Southeast Asia, such as Myanmar and Thailand, where trafficking victims are often forced into cross-border criminal activities—including telecom scams or drug transport—and later prosecuted in countries where they sought protection.

This article explores this issue in three parts. This article analyzes the principle from a human rights perspective and examines three existing models—duress, causation, and presumption-based. It highlights the practical and doctrinal limitations of these models through comparative analysis of international and domestic frameworks. Finally, drawing on theories of determinism and free will, this article proposes the “Dual-Factor Model” as a new approach to address the shortcomings of current models and offer a more coherent and just framework that better aligns with international human rights standards.