UNDOC 2016

ICAT The Inter-Agency Coordination Group Against Trafficking in Persons 10/2016 ISSUE BRIEF

COMPARISON BETWEEN TRAFFICKING IN PERSONS AND SMUGGLING OF MIGRANTS

Definition of Smuggling of Migrants

  • Procurement Purpose:

    • The illegal entry of a person into a State of which the person is not a national or permanent resident.

    • This is done to obtain, directly or indirectly, a financial or material benefit.

  • Protocol Purpose:

    • The Smuggling of Migrants Protocol aims to prevent and combat smuggling while promoting cooperation among State Parties and protecting the rights of smuggled migrants (Article 2).

  • Legal Protection:

    • Article 5 mandates that States shall not criminalize migrants for being victims of smuggling.

  • Scope:

    • Only concerns the irregular movement of migrants across international borders.

  • Aggravating Circumstances:

    • Article 6(3) states that States must recognize certain aggravating circumstances, which are:

    • Circumstances that endanger or are likely to endanger migrants’ lives or safety.

    • Circumstances that involve inhuman or degrading treatment or exploitation.

Definition of Trafficking in Persons

  • Elements of Trafficking:

    • Action: Recruitment, transportation, transfer, harbouring or receipt of persons.

    • Means:

    • Threat or use of force or coercion.

    • Abduction, fraud, deception, or abuse of power.

    • Giving or receiving of payments or benefits to consent of a person controlling another person.

    • Purpose:

    • Exploitation, including sexual exploitation, forced labour, slavery, servitude, or organ removal.

  • Trafficking of Children:

    • For trafficking involving children, there is no requirement of means; any act that exploits the child constitutes trafficking.

  • Characteristics of Trafficking:

    • Does not necessarily involve crossing a border and could involve ongoing exploitation generating benefits for traffickers.

    • The victim is a commodity, and traffickers commit crimes against individuals.

Key Differences Between Trafficking and Smuggling

  • Border-Crossing:

    • Smuggling: Involves irregular border crossing into another state.

    • Trafficking: Can occur without crossing a border (internal trafficking).

  • Relationship Dynamics:

    • Smuggling: The relationship is primarily commercial, ending after border crossing.

    • Trafficking: Ongoing exploitation often follows the initial transaction.

  • Nature of Crime:

    • Smuggling: Involves a crime against the state.

    • Trafficking: Involves a crime against individuals.

RELATIONSHIP BETWEEN TRAFFICKING AND SMUGGLING

  • Overlap in Routes:

    • Trafficking and smuggling can take place along the same routes, with smuggling sometimes leading to trafficking.

  • Vulnerabilities:

    • Smuggled individuals may lack travel or residency documents, may not speak the language, and may be unaware of their rights, creating conditions for exploitation and trafficking.

  • Example of Debt Bondage:

    • After smuggling, a smuggler may impose a condition of debt bondage on the individual.

    • The smuggler might claim that the individual owes a significant amount for the smuggling fee and must work under the smuggler’s control under impossible debt conditions, transforming from smuggling victim to trafficking victim.

IMPORTANCE OF DISTINCTION BETWEEN TRAFFICKING AND SMUGGLING

  • Different Responses Required:

    • Trafficking and smuggling require distinct legal responses concerning the individuals affected by these crimes and penalties for offenders.

  • Victims Identification:

    • Misidentifying victims due to confusion between trafficking and smuggling can lead to further violations of migrant rights.

    • States must ensure that trafficking victims can access legal assistance, protection measures, and appropriate remedies including health support and witness protection.

  • Human Rights Obligations:

    • States must protect the rights of all migrants within their jurisdiction, irrespective of immigration status.

IMPORTANCE OF A RIGHTS-BASED APPROACH IN ADDRESSING TRAFFICKING AND SMUGGLING

  • Human Rights Violations:

    • Human rights violations frequently occur within trafficking and smuggling contexts; however, many States focus on punitive measures for traffickers/smugglers rather than protection for victims.

  • Legislative Focus:

    • Many laws target prosecution but overlook the protection needs of the trafficked or smuggled individuals.

  • Consequences of Neglect:

    • A lack of a human rights framework can leave victims vulnerable, often leading to further crimes such as rape or violence going unaddressed.

  • Failure to Address Violations:

    • Without a rights-based approach, efforts to combat trafficking and smuggling could be ineffective, allowing continued abuses and violations of smuggled individuals.