Distinct Crimes on the Increase
Human trafficking and human smuggling are distinct crimes that are getting increased media attention due to the refugee crises in the Middle East and Europe as well as along the U.S. southern (and increasingly northern) border. In the process, their definitions are often conflated, with dangerous policy implications. Each group is in desperate need of compassion and action on behalf of receiving countries – but the circumstances, needs, and rights of each group are distinct. According to the United Nations, both trafficking in persons and migrant smuggling are some of the fastest growing areas of international criminal activity. Being conscious of the legal differences between human trafficking and migrant smuggling is important precisely because they overlap: any policies that affect one will necessarily affect the other.
As the trend for many receiving countries (including the U.S.) is leaning towards tighter migration policies, already vulnerable populations are increasingly being made to entrust their fate and the well-being of their families to smugglers, which can lead to human rights violations including human trafficking.
What is the Legal Difference?
Human trafficking is a crime involving the exploitation of someone for the purposes of forced labor or a commercial sex act using force, fraud, or coercion. Human smuggling involves the provision of a service – usually transportation or fraudulent documents — to an individual who voluntary seeks to enter a foreign country illegally. The United Nations defines migrant smuggling as the “procurement for financial or other material benefit of illegal entry of a person into a State of which that person is not a national or resident.” Smuggling migrants is reportedly a $7 billion industry, and since 2000 over 40,000 migrants have died on their journeys. In 2016, over 5,000 migrants died in the Mediterranean alone. It is important to note that although smuggled persons can become the victims of crime, not all crimes are trafficking. A smuggled person is at risk of abuse; however, although a smuggled person may be subjected to physical or sexual violence, the individual is not a trafficking victim unless he or she is compelled into forced labor or commercial sex through force, fraud or coercion.
One of the most misunderstood and difficult to distinguish aspects of the legal difference between trafficking and smuggling is consent. Migrants’ consent to being smuggled ends once they have reached their destination. As defined under the law, victims of human trafficking do not consent to the end result of the transaction, even if at times throughout the process they do, such as agreeing to a new job, a new location, or to being smuggled. The initial consent becomes legally irrelevant to the crime once the trafficker has used threat, coercion, or fraud to exploit the victim. Another common human trafficking myth is the concept of movement or transportation. Smugglers by definition always move migrants across national borders. Human trafficking does not necessarily involve movement. In fact, the UNODC estimates that approximately one quarter of human trafficking victims are exploited within their country of origin.
Differences Between Trafficking and Smuggling
|Must Contain an Element of Force, Fraud, or Coercion (actual, perceived or implied), unless under 18 years of age involved in commercial sex acts.||The person being smuggled is generally cooperating.|
|Forced Labor and/or Exploitation.||There is no actual or implied coercion.|
|Persons trafficked are victims.||Persons smuggled are complicit in the smuggling crime; they are not necessarily victims of the crime of smuggling (though they may become victims depending on the circumstances in which they were smuggled)|
|Enslaved, subjected to limited movement or isolation, or had documents confiscated.||Persons are free to leave, change jobs, etc.|
|Need not involve the actual movement of the victim.||Facilitates the illegal entry of person(s) from one country into another.|
|No requirement to cross an international border.||Smuggling always crosses an international border.|
|Person must be involved in labor/services or commercial sex acts, i.e., must be “working”.||Person must only be in country or attempting entry illegally.|
Why does it matter?
The conflation of smuggling and trafficking conveniently obfuscates the issue and misplaces the blame for migrant abuse onto the “evil trafficker.” As the sometimes-horrific results of human smuggling are often preventable and in order to avoid accusations of complacency in the face of such horrific human rights abuses, it is easier for governments to make grand statements blaming migrant deaths on traffickers than to seek the root causes of the migration and identify proper responses.
When major media outlets and politicians use these terms incorrectly or interchangeably, they blur both the circumstances and difficult choices that refugees and migrants make and create flawed perceptions that result in sometimes unsuitable responses to irregular migration.
By calling asylum seekers and migrants victims of human trafficking, governments can claim that law enforcement efforts and stricter vetting processes are more important than ensuring asylum seekers access and internationally guaranteed protections from persecution. Such language enables the European Union to destroy “traffickers’” boats as a humanitarian act aimed at saving lives or the United States to build a wall, with a “big beautiful door” people can pass through legally — when in reality the primary objective is to prevent people from migrating irregularly across their borders.
Conversely, if “human smuggling” is the only term used to define migrant movement, people who are deceived and exploited by traffickers will not be recognized as victims of human rights abuse and provided with appropriate legal or medical resources to aid in their recovery and/or in the prosecution of their traffickers.
Without a concerted international response to the largest refugee crisis since the second world war to provide relief and safe migration to millions, countless more will die or become victims of human trafficking as a larger market for human smugglers is created. The international community must address the core systemic issues motivating people to entrust their lives to smugglers to cross borders when their legal avenues are cut off by strict and uncompromising migration policies.
How LCHT is working to protect an already vulnerable population
At the Laboratory to Combat Human Trafficking, some of our core program work includes:
- Raising public awareness of the crime of human trafficking in all its insidious forms. In previous years, we collaborated with local refugee resettlement agencies to develop culturally appropriate prevention materials on sex and labor trafficking.
- Training first responders, including law enforcement, to recognize and appropriately respond to victims of human trafficking
- Conducting methodologically sound research that can be used to inform policy at the local, state, and national level.
By unpacking some of the myths that surround this current refugee crisis, we believe we can contribute to an informed and compassionate response.