Is there a distinction between human trafficking and the smuggling of migrants?

The smuggling of persons and human trafficking are now outlined as two distinct, criminal offences. Article 3(a) of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons defines trafficking in persons as ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the 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, for the purpose of exploitation’ (UN 2000a). The Protocol against the Smuggling of Migrants, Article 3(a) defines the smuggling of persons as ‘procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’ (UN 2000b).

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From the above it is clear to see that the two are being viewed as separate problems. This work will aim to further analyse the two definitions, highlighting their differences and similarities which can blur the lines between the crimes. The distinction captures the vital features of the two phenomena, however it still been has under criticism. As Iselin and Adams state, ‘it is critical to differentiate between the concepts, in order to better distinguish between who is a victim of trafficking, and who is an asylum-seeker, and who is an illegal migrant’ (Iselin and Adams 2003), this essay will aim to examine how those distinctions are made.

Firstly, it is crucial to clarify who the victims of the two phenomena are. Regarding the trafficking of human beings, the undoubtable victim is the person who is subjected to exploitation far greater than what those whom have been simply smuggled. For instance, someone who might have been illegally smuggled into a country, could be receiving a lower wage than a resident worker, however, a victim of human trafficking in most cases will receive no financial reward for their labour at all. In other words, human trafficking is a crime against a person, making them the victim, whereas in the act of smuggling, the person crossing the border is a client of the smuggler who normally only facilitates the cross over, and in most cases, it is just the State who is the victim, as its immigration laws are being broken. However, in reality it happens that the two crimes cross over due to factors, such as consent. There are instances where trafficking starts with consent, however it is never valid consent, as the trafficked person might in fact consent to the physical movement believing it is an essential part of arriving to the place of employment that they have been assured. Yet, ‘it is after this movement that consent is nullified’ (Iselin and Adams 2003) because they get exploited, meaning that the arrival is the part when one can truly find out which crime has been committed.

Furthermore, both crimes share a one purpose, which is movement, however according to their definitions there are many factors which differentiate them. For the traffickers, it is their intent to exploit at the destination and to gain profit from doing so, whereas a smuggler normally has no intent to control the migrant, nor to exploit them. The destination also plays an important role when speaking of distinguishing, as human trafficking has no borders, it can be international or domestic, for example ‘rural to urban, north to south’ (Iselin and Adams 2003).  On the other hand, people smuggling can only take place internationally, as its function is the ‘illegal entry of an intending migrant into a State in which that person has no lawful right to abode’ (ibid.) The destination for a trafficked victim is essentially where the exploitation shall take place, whereas a for a smuggled person, it is simply their choice of residence. The process of recruitment and procurement also differs greatly. In terms of human trafficking, the victim gets approached by someone who is looking for specific profile that fits the demand, for example an attractive female for prostitution purposes. The trafficker will then intend to deceive and coerce them in order to exploit. The people smuggler plays a very different role, as they are often established operators, and work a lot more like a business and have no need to lure people in, as many times customers come to them. 

However, the definitions provided by the UN separate human trafficking and smuggling on paper, but it seems that in practice the two crimes can cross over and it can prove difficult to effectively provide help to victims as well as persecute the right person for the correct crime. ‘Rarely are there “pure” cases of one or the other’ (Jacqueline Bhabha 2005).A study on Nigerian female migrants to Europe conducted by May-Len Skilberi and Marianne Tveit highlights that the boundaries between the two can be very thin. It can be argued that ‘smugglers can also be understood as living off other people’s vulnerabilities’ as well as can also have the ‘purpose to exploit’ (Skilberi and Tveit 2008), which can be seen clearly in this study. A typical smuggled migrant would make their own decision to migrate, however, in this case for some of the women it was ‘a family decision’ as it was seen as ‘an investment for the whole family’ even though some families were aware of ‘the possibility that they would end up selling sex in Europe’ (Skilberi and Tveit 2008). The journey to Europe for these women is so diverse, complex and expensive, and it requires a variety of agents and organisers, who often appear to act like more than just facilitators of their move to Europe. The study finds that contrary to the definition of smuggling, the women’s relationship with the smugglers in this case can follow them for years, blurring the boundaries, as they are often exploited by them due to the high debts they’ve acquired for the move itself. Although it might not be the smugglers who recruit the women in the same sense as a human trafficker, it appears that ‘women might be more attractive for human smugglers to assist’ as ‘they have a better chance of repaying debt due to prostitution in Europe’ (ibid.) which questions the ‘recruitment method’ in the Smuggling Protocol. This therefore highlights the complexity of the recruitment stage, however the fluidity of the crimes’ boundaries can also be challenged at the point of arrival, as it is questionable if and how the women are exploited in Europe. Although the study states that the women are usually aware that they will be entering prostitution, it is unclear if ‘they are free to leave when they want to’, (ibid.) The issue of consent and freedom is rather multifaceted in this case, as selling sex against your own will which smugglers profit from would appear to be linked closer with human trafficking, but on the other hand there exist ‘few opportunities to stay out of prostitution’ and women whom have spoken to the researchers do ‘not identify’ as ‘victims’ and ‘refuse to talk about whether or not the agent or agents’ (ibid.) are exploiting them.

An alternative approach proposed by Salt and Stein (1997), sees the crimes of ‘smuggling’ and ‘trafficking’ as interchangeable. It claims that consent in the actual stage of migration itself is not much relevant, as they state that ‘there is increasing evidence that migrants are turning to the service of traffickers’ (Salt and Stein 1997). This suggests that whether a migrant is coerced or acts within their will is not important enough to be differentiated, as it is often difficult to establish whether deception or coercion were used, as even persons who wished to be smuggled abroad can have their human rights abused.  Added to this, in a later publishing Salt (2000) highlights that the established routes and methods, such as forged documents, can facilitate human traffickers in the illegal move of persons, therefore it could be stated that smuggling can help trafficking flourish. There are also perspectives such as that of Hughes (2000) which limits human trafficking to ‘any practice that involves moving people within and across local and national borders for the purpose of sexual exploitation’, however, adds that ‘family pressure, past and present and community violence, economic deprivation, or other conditions of inequality for women and children’ (Hughes 2000). This would make the Nigerian women in Skilberi and Tveit’s (2008) study victims of human trafficking, as those were their reasons for migrating illegally. Using the two terms interchangeably is however flawed, as much as the acts of coercion, consent and deception are up for interpretation and can occur in both instances, it has to be stated that there are differences especially in terms of payment, as a trafficked person is always a victim which sometimes does not receive payment for their work, and is used as a means to make profit for the trafficker through ‘debt bondage’ (Aronowitz 2001), whereas, a smuggled person usually pays a fee upfront before departure only.

Apart from the differences and similarities in the processes and aims of the two crimes, it is important to mention that they are also open to interpretation clouding their distinctiveness. In a situation where a woman ‘is willingly smuggled to another country to knowingly work in prostitution’ but then is forced to ‘buy back her passport for an exorbitant fee’ (Aronowitz 2001), it would appear that she too is a victim of trafficking due to the exploitation, regardless of whether she gave initial consent, she is being restricted and enslaved in her position. This shows how there are different levels of coercion and deception, as it exists on a complete level when ‘victims have been abducted’ as well as in instances where ‘individuals have been promised jobs in the legitimate economy only to find themselves forced into sexual slavery’ (ibid.). It reflects the variation that exists in terms of interpreting the definitions, as some victims are less and some more aware of what their future holds, but regardless all a victim of exploitation.

Concluding, there is a general distinction between human trafficking and smuggling. Human trafficking in its essence commits a crime against the a human being though controlling their existence, often from gross deception, whereas in smuggling there typically is a choice, even if it is not a good one, and the crime is essentially against the state’s migration law. In the case of human trafficking, victims might start off thinking they are making a choice, but their freedoms are taken away, whereas a person who would like to migrate can have the opportunity to collect information and even choose their smuggling organisation. Acknowledging that there are distinctions however, does not mean that a transition from smuggling to trafficking cannot take place, or that smuggling can help facilitate trafficking as ‘a person can be in a smuggling situation one day and trafficked the next’ (Global Alliance Against Traffic in Women 2011). As mentioned before, there are rarely cases of pure smuggling, and the intention of potential traffickers can prove to be hard to detect at times. It seems that the only concrete difference is that trafficking can occur in any place, including domestically, but smuggling only appears internationally. However, the discussion and acknowledgment that the two crimes can blur can prove to be essential when persecuting and offering adequate help to victims, as treating trafficked persons as illegal migrants proves so. 

References

Aronowitz, A. (2001) ‘Smuggling And Trafficking In Human Beings: The Phenomenon, The Markets That Drive It And The Organisations That Promote It’. European Journal On Criminal Policy And Research 9, 163-195

Bhabha, J. (2005) Trafficking, Smuggling, And Human Rights [online] Migration Information Source – Trafficking, Smuggling, and Human Rights. available from <https://www.migrationpolicy.org/article/trafficking-smuggling-and-human-rights/> [8 December 2018]

Global Alliance Against Traffic in Women (2011) Smuggling And Trafficking: Rights And Intersections. GAATW Working Papers Series 2011. Bangkok: Global Alliance Against Traffic in Women

Hughes, D. (2000) ‘The Transnational Shadow Market Of Trafficking In Women’. Journal Of International Affairs 53 (2), 625-652

Iselin, B. and Adams, M. (2003) Distinguishing between Human Trafficking and People Smuggling. Bangkok: UN Office on Drugs and Crime, Regional Centre for East Asia and the Pacific

Salt, J. (2000) ‘Trafficking And Human Smuggling: A European Perspective’. International Migration 38 (3), 31-56

Salt, J. and Stein, J. (1997) ‘Migration As A Business: The Case Of Trafficking’. International Migration 35 (4), 467-494

Skilbrei, M. and Tveit, M. (2008) ‘Defining Trafficking Through Empirical Work: Blurred Boundaries And Their Consequences’. Gender, Technology And Development 12 (1), 9-30

United Nations (2000a) ‘The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Woman and Children, Supplementing United Nations Convention against Transnational Organised Crime’ [online] Available from: <https://www.ohchr.org/en/professionalinterest/pages/protocoltraffickinginpersons.aspx> [1/12/2018]

United Nations (2000b) ‘Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime’ [online] Available from: <https://www.ohchr.org/EN/ProfessionalInterest/Pages/TransnationalOrganizedCrime.aspx> [1/12/2018]