Monday, September 10, 2012

A Handy Reminder Sheet Highlighting the Differences Between Smuggling and Trafficking

What is Migrant Smuggling?
What are the overlaps and differences between migrant smuggling and human trafficking?
What is the role of consent in migrant smuggling?
How widespread is migrant smuggling?
Which countries are affected by migrant smuggling?
Who are the smuggled migrants and who are migrant smugglers?
What is the role of transnational organised crime groups in migrant smuggling?
Is there a legal instrument to tackle migrant smuggling?
What is the status of people who have been smuggled in respect of the Migrant Smuggling Protocol?
What are the major challenges faced in the battle against migrant smuggling?
Do many smugglers get caught and convicted?

What Is Migrant Smuggling?
Article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (the Migrant Smuggling Protocol) defines migrant smuggling as:
"..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".
Article 6 of the Migrant Smuggling Protocol requires the criminalization of this conduct.
In addition, Art. 6 requires states to criminalize the following conduct:
"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.
To summarise, Art. 6 requires states to establish as an offence or as offences the following conducts:
the procurement of the illegal entry

of a person into a state party of which the person is not a national

in order to obtain, directly or indirectly, a financial or other material benefit
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

in order to obtain, directly or indirectly, a financial or other material benefit
In short, the combination of the following elements constitutes 'migrant smuggling and related conduct':
1.      Either the procurement of  an illegal entry or illegal residence of a person; and;
2.      Into or in a country of which that person is not a national or permanent resident; and
3.      For the purpose of financial or other material benefit.
Furthermore, Article 6 of the Migrant Smuggling Protocol requires states to criminalize producing, procuring, providing or possessing fraudulent travel or identity documents when done for the purpose of enabling smuggling of migrants.
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What Are The Overlaps And Differences Between Migrant Smuggling And Human Trafficking?
The distinctions between smuggling and trafficking are often very subtle and sometimes they overlap. Identifying whether a case is one of human trafficking or migrant smuggling and related crimes can be very difficult for a number of reasons:
Some trafficked persons might start their journey by agreeing to be smuggled into a country, but find themselves deceived, coerced or forced into an exploitative situation later in the process (for instance, being forced to work for extraordinary low wages to pay for their 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. The 'fee' was part of the fraud and deception and a way to make 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 migrant smuggling may develop into a situation of human trafficking.
Simply put, there are four main technical differences between human trafficking and migrant smuggling.
Consent - migrant smuggling, while often undertaken in dangerous or degrading conditions, involves consent. Trafficking victims, on the other hand, have either never consented or if they initially consented, that consent has been rendered meaningless by the coercive, deceptive or abusive action of the traffickers.
Exploitation - migrant smuggling ends with the migrants' arrival at their destination, whereas trafficking involves the ongoing exploitation of the victim.
Transnationality - smuggling is always transnational, whereas trafficking may not be. Trafficking can occur regardless of whether victims are taken to another state or moved within a state's borders.
Source of profits - in smuggling cases profits are derived from the transportation of facilitation of the illegal entry or stay of a person into another county, while in trafficking cases profits are derived from exploitation.
To learn more about migrant smuggling, click here.
To learn more about human trafficking, click here.
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What Is The Role Of Consent In Migrant Smuggling?
Generally, smuggled migrants consent to being smuggled and provide those who smuggle them with a financial or material benefit in exchange for being smuggled. However, just because a person consents to being smuggled, does not necessarily mean that he or she consents to their treatment during the process of being smuggled or the conditions that they are made to endure. Smuggled migrants may retract their consent throughout the process of being smuggled upon discovering the nature of the process; they may still be forced to continue on with the journey. Smuggled migrants may fall victim to crimes by those who smuggle them, for instance, by violence being used or threatened against them or their families. Thousands of people have lost their lives as a result of the indifferent or even deliberate actions of migrant smugglers.
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How Widespread Is Migrant Smuggling?
It is difficult to assess the real size of migrant smuggling because it is a crime that takes place underground and is often not identified or is misidentified.  Information currently available is too scattered and too incomplete to be able to show accurately the numbers of people smuggled each year and the routes and methods used by those who smuggle them. However, the evidence available reveals that criminals are increasingly providing smuggling services to irregular migrants. As border controls improve, more migrants are diverted into the hands of smugglers. Further, not all persons who migrate have the legal opportunities to do so; as more and more people seek to migrate in search of a better life for themselves and their families, sometimes fleeing lack of employment opportunities, sometimes fleeing extreme poverty, natural disaster or persecution, a demand is created for services to help them. Profit-seeking criminals take advantage of this.
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Which Countries Are Affected By Migrant Smuggling?
Virtually every country in the world is affected by the smuggling of migrants, either as a country origin, transit or destination for migrants smuggled by crimals. Migrant smuggling and the activities related to it not only cost many people their lives, but also generate enormous profits for the criminals involved, fuelling corruption and organized crime in the countries travelled from, through or to during the smuggling process.
Not only does the crime of migrant smuggling seek to circumvent the border controls that sovereign states have put in place, it also has a negative impact on communities in countries of origin, transit and destination. In countries of origin, migrants and their families are often pushed further into destitution by profit seeking smugglers who may or may not deliver the services they sell. Where families and communities pool their resources to facilitate the migration of a key income-earning family member, who does not successfully migrate - or does not return - the negative impact on them is immeasurable.
Smuggled migrants and those who smuggle them can remain for long periods of time in transit countries, often under conditions of extreme hardship. Smugglers may recruit actors for their criminal activities among local or migrant communities, spreading the criminal impact of their business along the routes they use. The strain placed on destination country resources in attempts to intercept and process situations of migrant smuggling is significant; where they are under-resourced to appropriately resond to smuggling situations the crime may continue unchecked. Destination country communities are also impacted, with criminals being fed with a new supply of extremely vulnerable people to exploit. In short, migrant smuggling affects countries of origin, transit and destination - and therefore requires the collaborative response of all.
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Who Are The Smuggled Migrants And Who Are Migrant Smugglers?
There may be a range of different actors performing a range of different roles in the smuggling process. Small-scale smugglers would generally not employ other actors in the process but arrange all aspects of the actual operation themselves. Within larger smuggling networks there will be a division of work among the actors involved. Often, those individuals at the top of migrant smuggling networks are the most difficult to identify and bring to justice. Unless their activites are stopped, migrant smuggling will continue.
It is also difficult to generalize about the people using the services of smugglers since their profile constantly evolves with changing circumstances. Smuggled migrants can be men, women and children. Some studies from different parts of the world have shown that the first migrants who are smuggled are young men. This is often due to the expectations placed on males to provide for their families; often such men will have to risk their own life in order for a chance to make remittances to send back home in support of those they leave behind. However, research has also revealed that there is a feminization of migration, with more women migrating than before.
Many smuggled migrants are escaping poverty, lack of opportunity, natural disaster or conflict. Others may be seeking asylum. Many smuggled migrants (though not necessarily all) are poor and uneducated. Others may be middle class people who are educated. Perhaps the only generalization that can be made about migrants who are smuggled is that they are all on a quest for a better life.
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What Is The Role Of Transnational Organised Crime Groups In Migrant Smuggling?
In the case of migrant smuggling, without some element of cross-border movement there is neither smuggling, nor migration. The definition of migrant smuggling provided in the Migrant Smuggling Protocol provides for a crime that by its nature involves transborder activity. However, according to the Protocol domestic offences should apply even where transnationality and the involvement of organized crime groups does not exist or cannot be proved. In other words, prosecutors should not be required to prove either transnionality nor organized crime in order to obtain a conviction of migrant smugglers.
As with other forms of organized crime, groups formerly active in specific routes or regions have expanded the geographical scope of their activities to explore new markets. Some have merged or formed cooperative relationships, expanding their geographical reach and range of criminal activities. For some crime groups, migrants are viewed simply as one of many commodities to be smuggled along with drugs and firearms for instance.
Since the smuggling of migrants is a highly profitable business with a relatively low risk of detection, the crime is becoming increasingly attractive to criminals. Smugglers of migrants are becoming more and more organized, establishing professional networks that transcend borders and regions.
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Is There A Legal Instrument To Tackle Migrant Smuggling?
The Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (the Migrant Smuggling Protocol) supplementing the United Nations Convention against Transnational Organized Crime entered into force on 28 January 2004.
Article 2 of the Migrant Smuggling Protocol sets out the three basic purposes of the Protocol;
To prevent and combat the smuggling of migrants
To promote cooperation among States Parties to that end
To protect the rights of smuggled migrants
To learn more about the United Nations Convention on Transnational Organized Crime and its supplementary Protocols, click here.
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What Is The Status Of People Who Have Been Smuggled In Respect Of The Migrant Smuggling Protocol?
It must be stressed that the Migrant Smuggling Protocol is concerned with the smuggling of migrants, not migration itself.  In this sense it is important to note that the Migrant Smuggling Protocol does not intend to criminalize family members or other groups who smuggle a person (or enable or facilitate their stay) for non-profit reasons. The Migrant Smuggling Protocol also in no way criminalizes the involvement of the migrants themselves for having being smuggled. Article 5 of the Protocol reads that 'Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in Article 6 of this Protocol'. In other words, a person cannot be charged with the crime of migrant smuggling, only for having been smuggled. However, as Article 6(4), explains, this does not mean that they cannot be prosecuted for having smuggled others or for the commission of any other offences against domestic law.
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What Are The Major Challenges Faced In The Battle Against Migrant Smuggling?
Migrant smuggling is a complex, ever-changing crime that takes different forms in different parts of the world. It is easily adaptable to shifting circumstances of supply and demand, as well as different criminal justice capacities in countries of origin, transit and destination. Despite the wide-spread nature of smuggling in migrants, the global efforts in curbing this phenonemon have largely focused on apprehending and deporting individual migrants with very little done to dismantle the organized crime behind this deadly business. Unless the organized crime groups who smuggle migrants are dismantled, migrant smugglers will continue to operate and quickly adapt their methdos and routes to changing circumstances such as improved border controls or changes in visa regimes. Similarly, where efforts are focused primarily on strengthening border controls, the effect is often to increase demand for smuggling services to enter countries illegally.
Tackling migrant smuggling necessitates a comprehensive, multi-dimensional response, which begins with addressing the socio-economic root causes of irregular migration to prevent it, and goes through to prosecution of criminals who commit smuggling-related crimes. From a UNODC perspective, the challenge is to dismantle the smuggling networks by strenghtening the criminal justice response, while protecting rights of smuggled migrants with strong multi-agency cooperation in all responses.
Read more about UNODC's response to migrant smuggling.
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Do Many Smugglers Get Caught And Convicted?
The absence or the inadequecy of legislation means that often migrant smugglers can continue their crime with little fear of being brought to justice. Only a limited number of governments have specific policies and mechanisms in place to address the crime. Lack of capacity to investigate and prosecute migrant smuggling means that criminal justice systems are often inadequate to meet the challenge of combating migrant smuggling. Beyond this, failure to secure smuggled migrants as witnesses to migrant smuggling crimes means that prosecutions are often difficult and opportunities to convict are missed. Key to combating migrant smuggling, is the need to increase international cooperation to ensure that actors in countries of origin, transit and destination work together to ensure that migrant smugglers do not have safe havens in the commission of their crime.

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