Trafficking in persons and smuggling of migrants are different crimes that require different responses in law and are each covered by a Protocol supplementing the Organized Crime Convention. However, these two offences are often confused, as they can occur along the same routes and affect the same people. For instance, what may begin as a case of migrant smuggling may then transform into one of trafficking in persons, since smuggled migrants are particularly vulnerable to becoming victims of trafficking. Nonetheless, constituent elements of these two offences are different and it is important to understand them, particularly for investigators and prosecutors, in order to design an appropriate crime prevention and criminal justice response.
The constituent elements of the crime of trafficking in persons are identified in the "Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children," supplementing the Organized Crime Convention (the Trafficking in Persons Protocol). The Protocol identifies these elements in article 3.
Definitions in the Trafficking in Persons Protocol
(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harboring 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.
(c) The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article.
(d) "Child" shall mean any person under eighteen years of age.
The basic elements of trafficking in persons are three:
The crime of trafficking in persons takes place when at least one of the "acts" and at least one of the "means" is combined with the "purpose" of exploitation. The Protocol states that the consent of a victim of trafficking to the intended exploitation is irrelevant once it is demonstrated that deception, coercion, force or other prohibited means have been used. This means that traffickers cannot use the victim's consent as defence once they are brought before a court of law. However, even in jurisdictions which explicitly include in their case law or legislation that the victim's consent is irrelevant, this is often a central focus of trials on trafficking in persons and related crimes. (UNODC, 2017) The Protocol extends special protection to children by specifying that in trafficking cases involving children the element of means does not need to be established.
Migrant smuggling is the subject of a separate Protocol to the Organized Crime Convention titled "Protocol against the Smuggling of Migrants by Land, Sea and Air" (the Smuggling of Migrants Protocol), supplementing the United Nations Convention against Transnational Organized Crime. The purpose of the Protocol is to "prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants."(article 2, Smuggling of Migrants Protocol) One of the main objectives of the Protocol is to protect migrants from exploitation by smugglers, who would take advantage of migrants' needs and lack of alternatives. The smuggling of migrants is defined in the Protocol in article 3.
Definitions in the Smuggling of Migrants Protocol
(a) "Smuggling of migrants" shall mean the 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.
(b) "Illegal entry" shall mean crossing borders without complying with the necessary requirements for legal entry into the receiving State.
Article 3 of the Smuggling of Migrants Protocol adopts a wide approach to the notion of "migrant" that includes both voluntary and involuntary movements, thus encompassing refugees for the purpose of the Protocol. However, there is a distinction between migrant, who are generally accepted as being persons who move voluntarily and refugees, who do not. Refugees might have no other choice but to use smugglers in order to escape persecution. Refugees have specific rights under international law, primarily by the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees - both recognized in the saving clause of the Smuggling of Migrants Protocol (article 19). (UNODC, 2011)
The Protocol requires the criminalization of such a conduct. In addition, article 6 of the Protocol, requires States to criminalize the conduct of "enabling a person to remain in a country where the person is not a legal resident or citizen without complying with requirements for legally remaining by illegal means" in order to obtain a financial or other material benefit. (UNODC, 2017) Thus, migrant smuggling fits well within the larger Organized Crime Convention because it is aimed at those groups who would seek to profit from smuggling migrants. In fact, the smuggler will have procured or facilitated a migrant to enter or stay in a country for a financial or material benefit. In this way, migrants become a "product" to move across borders, so that smugglers can illicitly earn money from that transnational movement.
The Smuggling of Migrants Protocol also criminalizes offences related to migrant smuggling, including those that involve fraudulent travel or identity documents and enabling the stay of the smuggled migrant. In particular, article 6 criminalizes producing, procuring, providing or possessing fraudulent travel or identity documents. These might include look-alike documents (used when two persons look similar in appearances), altered documents, forged documents, fantasy documents, documents obtained through misrepresentation or documents that were improperly issued (e.g., obtained through corruption, duress or in any other unlawful manner).
It is important to notice that the Protocol does not intend to criminalize migrants themselves. Article 5 specifies that migrants shall not become liable to criminal prosecution under the Protocol. Therefore, smuggled migrants must not be held responsible for the crime of smuggling nor for the fact of having been smuggled by virtue of the Protocol. Countries can however take measures against smuggled migrants whose conduct constituted an offence under their domestic laws.
Trafficking in persons is distinguished from migrant smuggling by various elements, such as the elements of coercion, transnationality, exploitation and/or fraud (ICAT, 2016).
With respect to the element of coercion, migrant smuggling suggests voluntary participation of those being smuggled, although there is evidence that the distinction between the two crimes in this area might be blurred. This is because a number of cases have been documented where migrant smuggling becomes trafficking in persons when the victim is exploited contrary to their original agreement. (Aronowitz, 2009; Hughes, 2004; ILO, 2016) The voluntary nature of smuggling can be revoked at the whim of the smuggler, who then uses the victim for his own purposes by means of fraud, threats, or force, thus turning a case of migrant smuggling into a case of human trafficking.
Furthermore, contrary to trafficking, the objective of migrant smuggling is always to facilitate the illegal entry or stay of the migrant in the country of destination. Migrant smuggling has thus a transnational dimension, since it shall involve the crossing of at least one international border, whereas human trafficking can - and often does - take place close to the homes of the victims. Data from the 2017 UNODC Global Report on Trafficking in Persons shows that some 42 per cent of the detected victims are trafficked domestically. (UNODC, 2017)
Another important indicator of whether a case is one of migrant smuggling or of trafficking in persons is how the offenders obtain criminal profit. The primary source of profit in trafficking in persons, and thus also the primary purpose of traffickers, is to generate income through the exploitation of the victims. In migrant smuggling cases, there is an agreement established between the smuggler and the migrant for the procurement of illegal entry into another State (or unlawful stay in one State). Once smugglers have been paid or have received the material benefit they wanted, generally they have no intention to exploit the migrant. (UNODC, 2011) Nonetheless, there is an increasing number of cases of exploitation of migrants during their journey, or upon arrival in the destination country. As specified in article 6 of the Smuggling of Migrants Protocol, State parties shall establish the inhuman or degrading treatment of migrants, including for exploitation, as aggravating circumstances.
Finally, the crime of migrant smuggling does not require the victimization of the migrant who is smuggled. This, as mentioned above, does not mean that migrants cannot become victims as well. For instance, if a migrant deems the conditions of transportation to be too dangerous he or she may seek to discontinue the journey, but be physically forced or threatened (e.g., the migrant might be forced to board a vessel). In this scenario, the migrant has then become a victim of crime. In contrast, trafficking always involve a crime against a person.
According to the 2016 Global Report on Trafficking in Persons, no country is immune from this crime. The Report identifies more than 500 different human trafficking flows around the world, involving citizens from 137 different countries. The nature of human trafficking is changing over the years with children and men making up an increasing number of known victims, respectively 28% and 21%. The latest data available on the most commonly detected form of trafficking - for the 2012-2014 period - is in line with previous years and shows that about 54% of detected victims have been trafficked for sexual exploitation. The trend for this form, however, is decreasing and trafficking for forced labour now accounts for a larger share of the detected victims. The Report also shows that traffickers and their victims often come from the same locations, speak the same language, and have the same ethnic background. These common features help traffickers establish trust. (UNODC, 2016)
Human trafficking networks can operate successfully only where there is some kind of coordination of effort among recruiters, transporters and exploiters. These three interconnected networks are separated only by their "product," which in the case of human trafficking is individuals at risk who are exploited because of their vulnerability (please visit: UNODC Human Trafficking Knowledge Portal).
An analysis of country-level data on detected trafficking victims and recently arrived migrants found that cases of trafficking in persons and regular migration flows broadly overlap each other in various parts of the world. (UNDP, 2009) The United Nations estimates that there were 244 million international migrants across the world in 2015, a 40 % increase from 15 years earlier. (UNODC, 2016) Nonetheless, data comparable to the one discussed for trafficking in persons, does not yet exist for smuggling of migrants. UNODC will publish its first Global Study on Smuggling of Migrants soon.
Interviews with victims, police, and service providers offer first-hand accounts of how human trafficking and migrant smuggling are organized. This work offers clear insights for prevention and intervention, such as the methods and promises used in recruitment, transport, and exploitation in human trafficking cases, and although these methods vary somewhat in different locations, such information has clear utility for training for police and prosecution, victim identification, service providers and public education. (UNODC, 2015)