Last Updated on November 4, 2020 by themigrationnews
*Jasmin Lilian Diab
Every year thousands of migrants and refugees travel across the world in search of a safe haven and better living conditions. Among these people, there are victims of trafficking and smuggled migrants. But what does it mean to be a victim of trafficking or a smuggled migrant, and what is the legal difference between “trafficking in persons” or “smuggling of migrants” in the eyes of international law and international legal frameworks?
These terms have been addressed in media reports on countless occasions, and while opinions are bound, there is still a general lack of understanding about these crimes, their root causes, the difference between them and their implications. To clarify key concepts, one can look at internationally agreed definitions of these crimes.
Human trafficking and migrant smuggling are complex phenomena that affect people in different ways. While sometimes linked, these are separate crimes. A trafficked person is someone who is recruited, transported, transferred or harbored through illegal means such as fraud, force or other forms of coercion for the purpose of exploitation. Exploitation includes 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. An example of this according to the United Nations Office on Drugs and Crime (UNODC) may be a person who takes a job as a domestic worker in another state under the promise of a good salary and benefits; however, the person turns out to be subject to degrading work conditions and does not receive a salary. In the MENA region for example, the Kafala System (Sponsorship System) governing this population would fall under the international legal definition of trafficking in persons on a number of occasions.
Similarly, the international community also agrees on a definition for smuggling of migrants, which is a crime that takes place when someone facilitates the person’s illegal entry or stay in a country of which the person is not a national or permanent resident in order to obtain financial or other material benefits. Trafficking in persons and smuggling of migrants are different crimes that require different responses in international law and legal frameworks, both with regards to the rights of the persons who have been the object of one of these crimes and to the penalty for perpetrators. An example of this as per the UNODC may be a case whereby a group of people charges money from migrants to drive them across a border into another country, thus bypassing the official entry requirements and border controls of the destination country. If migrants do not have enough money, the group takes whatever valuable possessions they have as payment.
Trafficking in persons and smuggling of migrants are often presented in an overly simplified way. The truth is that both crimes are very complex. For an effective and sustainable response, it is important to understand these complexities. A gender-responsive approach to human trafficking and migrant smuggling takes into account the different needs and circumstances of people of all genders and reveals the complexity and intersectional levels of these crimes. This enables practitioner and policymakers to better grasp patterns and trends, as well as adapt policy responses and legal mechanisms accordingly.
Victims of trafficking in persons can be women, men, girls and boys. They are exploited for different purposes with or without physical violence. While typical misconceptions have pushed us to picture young men arriving in overflowing smuggling boats, as the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime insists, most smuggling routes are over land and some are buy air. And despite the fact that we often hear of men being perpetrators of trafficking in persons and smuggling of migrants, data has revealed that in trafficking in persons, women are convicted as perpetrators more of ten than in any other form of organized crime.
Victims of trafficking in persons (male or female)should not be criminalized for crimes that they were forced to commit as part of the exploitation. A gendered lens makes the real issues visible, and reveals various barriers to reporting abuse, violence and exploitation for women, men, girls and boys, as well as the variety of tailored needs for assistance. Smuggled migrants have human rights that must be respected, including the right to be treated with dignity and the right to personal safety. It is not only pivotal to raise awareness about human trafficking and migrant smuggling, but also to address the root causes of social vulnerabilities, such as poverty or conflict and their impact on the forced migration rhetoric. Data on trafficking in persons and smuggling of migrants save lives. The UNODC biannual Global Report on Trafficking in Persons insists that in the trafficking context, understanding locations where trafficking occurs and specific populations most at risk of becoming victims of trafficking supports creating targeted responses. In the smuggling context, the report insists that data can not only assist in identifying the modus operandi of migrant smugglers, but that it is also key in dismantling smuggling networks .Both crimes pose considerable risks to the safety of trafficked persons and smuggled migrants. For this purpose, there is a need for clarifying key concepts and employing correct terminology to inform debates around these important issue areas within the forced migration and asylum rhetoric. There is an indispensable need to provide practitioners, policy makers, researchers and academics with practical orientated tools to develop informed quality information around trafficking in persons and smuggling of migrants.
*Jasmin Lilian Diab, ABD is a Canadian-Lebanese researcher, writer, manager, editor, reviewer, instructor and consultant in the areas of Forced Migration, Gender and Conflict. She currently serves as Refugee Health Program Coordinator at the Global Health Institute at the American University of Beirut (Lebanon), MENA Regional Focal Point on Migration of the United Nations General Assembly-mandated UN Major Group for Children and Youth (USA), Data Entry and Outreach Coordinator at Asylum Connect (Canada), and Senior Consultant on Forced Migration and Gender at Cambridge Consulting Services (UK). Twitter ID: @jasminldiab