Although patterns of human trafficking are similar to those seen in people smuggling, they are different legally, a broad distinction can be made between the two.
In general, the individuals who pay a smuggler in order to gain illegal entry to a country do so voluntarily whereas the victims of human trafficking are often duped or forced into entering another country. In addition, people smuggling does not necessarily involve exploitation for economic purposes.
Trafficking in persons can be understood as requiring an action, means, and purpose:
- ACTION: Recruitment, transportation, transfer, harbouring or receipt of persons;
- MEANS: Threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person;
- PURPOSE: Exploitation; including the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
• Does not necessarily involve crossing a border
• often involves ongoing exploitation that generates a benefit, financial or otherwise, for traffickers
• Commodity is a person
• Traffickers commit a crime against individuals
Smuggling of migrants the procurement of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident in order to obtain, directly or indirectly, a financial or other material benefit.
- The purpose of the Smuggling of Migrants Protocol is to prevent and combat the smuggling of migrants, as well as to promote cooperation among State Parties to that end, while protecting the rights of smuggled migrants (Article 2 Smuggling of Migrants Protocol). The Protocol requires States not to criminalise migrants for the fact of having been the object of the crime of smuggling (Article 5).
- The Protocol against the Smuggling of Migrants refers only to the irregular movement of migrants across international borders.
- The Protocol also creates an obligation to establish ‘aggravating circumstances’ to the crime of smuggling of migrants. These include ‘circumstances (a) that endanger, or are likely to endanger, the lives or safety of the migrants concerned; or (b) that entail inhuman or degrading treatment, including for exploitation, of such migrants’ (Article 6(3)).
• Involves irregular border crossing and entry into another state
• The relationship between smuggler and migrant is a commercial transaction, which usually ends after the border crossing
• Commodity is a service: facilitating irregular border crossing for financial or other material benefit
• Smugglers commit a crime against the state
- Smuggling requires crossing of an international border, whereas trafficking can occur within national borders (so called ‘internal trafficking’).
- Smuggling need not include any form of force, coercion, deception, or abuse of power.
- Frequent involvement of organised crime
- Trafficking and Smuggling can occur along the same routes and be perpetrated by the same criminals
- Like trafficked persons, often smuggled migrants are victims of other crimes, ill-treatment, violence, or human rights violations
How can trafficking and smuggling be related?
Trafficking and smuggling can occur along the same routes and smuggling can sometimes lead to trafficking.
Smuggled persons may not have travel or residency documents, may not speak the language of the country in which they were smuggled, and may be unsure of their rights in the new country. They may also be in need of international protection and cannot return home.
This conditions of vulnerability create an environment in which the smuggled person is more susceptible to exploitation and trafficking. For example, after an individual has been smuggled into his or her destination country, the smuggler may become a trafficker by imposing a condition of debt bondage on the individual, a practice similar to slavery. The smuggler may tell the individual that he or she owes a large amount of money for the “smuggling fee,” and that in order for the individual to pay off the debt he or she must work, live, and eat at a specific location designated by the smuggler. The individual may be charged for rent and food at a rate that makes the initial “debt” impossible to pay off. The individual is left in a state of debt bondage and thus becomes a victim of human trafficking.
Why is it important to distinguish between trafficking and smuggling?
Trafficking in persons and Smuggling of migrants are different crimes that require different responses in law, both with regard to the rights of a person who has been the object of one of these crimes and to the penalty for perpetrators.
From a rights holder’s perspective, the confusion between trafficking and smuggling often leads to States, courts and service providers failing to identify some migrants as victims of trafficking. States have an obligation to correctly identify victims of trafficking to ensure that their rights are not further violated and that they can access assistance, protection measures and solutions, including physical and mental health support, witness protection and remedies. States must create a framework to ensure that this identification does take place.
States also have an obligation to protect the human rights of all migrants within their jurisdiction, regardless of their immigration status.
It is important to distinguish between trafficking in persons and smuggling of migrants for three reasons:
- The constituent elements of these offences are different
- The response required and the assistance needed will vary, depending on the offence
- Whether one is recognised as a smuggled migrant or as a victim of trafficking will have serious implications for the person concerned.
In a significant number of cases it may be difficult to distinguish between a case of trafficking in persons and a case of smuggling of migrants. The distinctions between smuggling and trafficking are often very subtle and they sometimes overlap. Identifying whether a case is one of trafficking in persons or smuggling of migrants can be very difficult for a number of reasons:
- Some trafficked persons might start their journey by agreeing to be smuggled into a country illegally, but later in the process, may find themselves deceived, coerced or forced into an exploitative situation (for instance, one where they are compelled to work for extraordinarily low wages to pay for the transportation).
- Traffickers may present an “opportunity” that sounds more like smuggling to potential victims. They could be asked to pay a fee in common with other people who are smuggled. However, the intention of the trafficker from the outset is the exploitation of the victim. Charging the “fee” is part of the deception and a fraudulent way to make a little more money.
- Smuggling may not be the planned intention at the outset but a “too good to miss” opportunity to traffic people presents itself to the smugglers/traffickers at some point in the process.
- Criminals may both smuggle and traffic people, employing the same routes and methods of transporting them.
In short, what begins as a situation of smuggling of migrants may develop into one of trafficking in persons.
There are three basic differences between smuggling of migrants and trafficking in persons, as summarised below:
One important indicator of whether a case is one of smuggling of migrants is the means by which the offenders generate their income. The primary source of profit and thus also the primary purpose of trafficking in persons is exploitation. In contrast, the smuggler has no intention of exploiting the smuggled migrant after having enabled him or her to illegally enter or stay in a country. Smugglers of migrants are usually paid in advance or upon the arrival of the smuggled migrant, by the smuggled migrant or by intermediaries. It must also be noted that smuggled migrants sometimes do not pay the entire smuggling fee at the outset of the process; the fact that payment is pending renders them vulnerable to exploitation by the smugglers. In other words, the relationship between smuggler and smuggled migrant usually ends after illegal entry or illegal residence has been achieved. In contrast, in the process of trafficking in persons, profits are generated mainly through exploitation. The exploitation phase might last for several years.
Exploitation could even include “selling” a victim at some point before they begin to be exploited at their final destination; however, they are being “bought” to be exploited.
Illegal entry or illegal residence (“transnationallity”)
Smuggling of migrants always has a transnational dimension involving at least two countries. The objective of the smuggling of migrants or related conduct is always to facilitate the illegal entry of a person from one country into another country or their stay in that country. Trafficking in persons, on the other hand, may occur across borders but it may also be carried out within a single country, in which case a person is simply taken to another location for the purpose of exploitation. Indeed, victims of trafficking are often trafficked within their home country.
Smuggling of migrants does not necessarily involve the victimisation of the smuggled migrant. Smuggling of migrants generally involves the consent of those being smuggled. However, often other crimes are committed against smuggled migrants during the smuggling process, such as violence or crimes entailing endangerment of the smuggled migrants’ lives. Smuggled migrants might withdraw their consent during a smuggling operation (for instance, if they deem the conditions of transportation too dangerous) but may subsequently be forced to continue to participate in the smuggling process (for instance, by being forced to enter a leaking boat or a crowded truck).
In contrast with the smuggling of migrants, trafficking in persons is always a crime against a person. Either victims of trafficking never give their consent—for instance, if they have been abducted or sold—or, if they have given their consent initially, that initial consent became meaningless, by virtue of the fact that the traffickers have used deception or violence to gain control over their victims.
Trafficking in persons and smuggling of migrants (as criminalised by international law)
Importance of a rights-based approach when addressing trafficking and smuggling
Although human rights violations can and do occur alongside trafficking and smuggling, many States do not use a human rights framework as their primary lens in their responses to either trafficking in persons or smuggling. Oftentimes, legislation and other instruments designed to combat trafficking and smuggling focus on prosecuting the trafficker or smuggler while neglecting to adequately address the assistance and protection needs of individuals who have been trafficked or smuggled. It is common for States to view trafficking and smuggling through only immigration, criminal and public order frameworks.
Failing to use a human rights-based approach leaves victims of trafficking in persons and potential victims vulnerable to further violations. Smuggled persons may be subject to rape, beatings, and deprivation of food and water. These crimes go often unreported. Some persons are left to die if they cannot keep up with the larger group of migrants. If States do not employ a rights-based approach they will fail to prevent and address these types of violations.