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.
(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.
(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).
Article 6 of the Protocol requires States to criminalize migrant smuggling (as defined in its article 3), as well as 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 legal stay by illegal means (UNODC, 2017). The same article also specifies that these conducts shall be established as criminal offences when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit. The inclusion of "financial or other material benefit" as a constitutive element of the migrant smuggling crime is a clear indication of the Smuggling of Migrants Protocol's focus on tackling those - particularly organized crime groups - who seek to benefit from smuggling migrants. Criminalizing procurement of illegal entry or enabling irregular stay without requiring the financial or other material benefit element means that criminal justice responses can potentially be applied in a wider range of circumstances than what was intended when the Smuggling of Migrants Protocol was drafted (UNODC, 2018). A key issue in this regard is the possibility of prosecuting persons who provide assistance to migrants solely on the basis of family and/or humanitarian motives; when national legislation omits the "financial or other material benefit" element from the definition of the conduct the act of helping a family member cross a border or rescuing migrants at sea could be sufficient grounds for being prosecuted as a migrant smuggler.
The Smuggling of Migrants Protocol also criminalizes other offences related to migrant smuggling, such as producing, procuring, providing or possessing fraudulent travel or identity documents (article 6(b)). 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, source of criminal profit/purpose of the crime and the person or institution against whom the crime is committed (ICAT, 2016; UNODC, 2018).
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, migrant smuggling is per definition always transnational in that it involves crossing at least one international border, whereas human trafficking can - and often does - take place close to the homes of the victims. Data from the 2018 UNODC Global Report on Trafficking in Persons shows victims who have been detected within their own national borders now represent the largest part of the victims detected worldwide.
Another important indicator of whether a case is one of migrant smuggling or of trafficking in persons is the source of 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, another element of distinction is that trafficking in persons is a crime against a person - the trafficked victim -, whereas migrant smuggling affects the sovereignty of States over their borders and thus does not involve persons as victims. Nonetheless, as previously mentioned, this 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 recent UNODC Reports on Trafficking in Persons, no country is immune from this crime (UNODC, 2016; UNODC 2018). The 2018 Global Report highlights that countries have reported increased numbers of detected trafficking victims over the last few years, which can be the result of enhanced national capacities to detect, record and report data on trafficking victims, or to a growth in the incidence of trafficking. Most trafficking victims are detected in their countries of citizenship, while wealthy countries are more likely to be destinations for detected victims trafficked from more distant origins (UNODC, 2018).
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% in 2016, and 30% and 21% in 2018, while most detected victims are still adult women (49% in 2018). Nonetheless, the latest data shows that there are considerable regional differences in the sex and age profiles of detected trafficking victims. In West Africa, most of the detected victims are children, both boys and girls, while in South Asia, victims are equally reported to be men, women and children. In Central Asia, a larger share of adult men is detected compared to other regions, while in Central America and the Caribbean, more girls are recorded (UNODC, 2018). The latest data available on the most commonly detected form of trafficking - 2016 or most recent year - is in line with previous years and shows that most of the victims detected globally are trafficked for sexual exploitation, although this pattern is not consistent across all regions. Figure 3.2 below shows the main forms of exploitation detected in different subregion as well as the profile of the victims.
Generally speaking, while forms other than sexual exploitation and forced labour are detected at much lower rates, they still display some geographical specificities. Trafficking for forced marriage, for example, is more commonly detected in parts of South-East Asia, while trafficking of children for illegal adoption is recorded in Central and South American countries. Trafficking for forced criminality is mainly reported in Western and Southern Europe, while trafficking for organ removal is primarily detected in North Africa, Central and South-Eastern Europe, and Eastern Europe (UNODC, 2018).
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 (to access legislation, case law and other information on trafficking in persons, 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). Much like trafficking in persons, smuggling of migrants affects all regions of the world and there is evidence that, at a minimum, 2.5 million migrants were smuggled for an economic return of US$5.5-7 billion in 2016 (UNODC, 2018). The smugglers' profits stem from the fees they charge migrants for their services, which are not fixed but largely determined by the distance of the smuggling trajectory, number of border crossings, geographic conditions, means of transport, and use of fraudulent travel or identity documents, among other factors. The organization and size of smuggling operations vary: certain smugglers operate individually or at a small-scale and on ad hoc basis, some are organized in loose 'networks' operating autonomously in different parts of the smuggling process, others belong to large and well-organized criminal operations with transnational links. Depending on the type and size of their network, smugglers supply a series of services, which might include transportation and escorting during irregular border crossing, accommodation, planning and contacts along the route, various forms of corruption (from petty corruption at individual border control points to grand corruption at higher levels of government) as well as falsified or fraudulently obtained travel documents (UNODC, 2018).
Most smuggled migrants are young males travelling alone, although some smuggling flows include larger shares of female migrants, family units or unaccompanied migrants (that is the case, for instance, for Syrian citizens typically smuggled in family units, as entire families flee armed conflict and seek protection together). A significant and growing number of unaccompanied minors - mostly boys, aged between 14 and 18 - are also smuggled to Europe and other destinations, which poses great challenges to children's rights and wellbeing (UNODC, 2018). Smuggling operations take place across a wide range of countries and there is a myriad of routes used to smuggle migrants, some changing rather quickly. The 2018 UNODC Global Study on Smuggling of Migrants identified over 30 of them, some of which are highlighted in Figure 3.3, together with their estimated magnitude and value.
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).
Recent reports (UNODC, 2018) show that there has been an overall increase in the detection of victims of trafficking in persons across the world in recent years, which could be read as a positive sign of enhanced efforts by authorities to identify victims, or as a negative one of a larger trafficking problem. In any case, where the number of detected victims has increased after legislative or programmatic action - such as amendments to legislation, enforcement of victim protection schemes, etc. -, these initiatives have contributed to improving victims' identification as well as the effectiveness of criminal justice responses. At the same time, data also shows that despite this progress, impunity still prevails in large parts of the globe as demonstrated by the low levels of convictions and victim detections recorded in various parts of Asia and sub-Saharan Africa. As most countries in these areas are now parties to the Trafficking in Persons Protocol and have appropriate legislation in place, their efforts need to concentrate on the implementation of these provisions, while support from other countries - either of transit or destination - affected by the same trafficking flows can help to accelerate anti-trafficking efforts.
The 2018 Global Report on Trafficking in Persons also highlights that victims who have been detected within their own national borders now represent the largest part of the victims detected worldwide, a trend that needs to be taken into account when adopting criminal justice measures or designing strategies and priorities to fight trafficking. At the same time, the trafficking of children remains an area of key concern and requires a holistic approach that does not only include criminal justice practitioners, but also teachers and the educational system at large. Finally, as many trafficking flows involve persons fleeing armed conflict and persecution towards safer destinations, these situations require special attention and prove particularly challenging. Firstly, it is fundamental to ensure that UN and other agencies' peacekeeping personnel deployed in field missions have the capacity to identify and report on trafficking cases. Furthermore, targeted information material that explains the risks of and possible responses to trafficking could be included in practical information given to migrants in refugee camps and along migratory routes. In conjunction with these initiatives, targeted efforts should be made to prevent and counter child recruitment by terrorist and violent extremist groups, as well as promote their rehabilitation and reintegration.
For both trafficking in persons and smuggling of migrants, there remain significant knowledge gaps related to flows and patterns of these crimes. Nonetheless, much like the different global reports on trafficking in persons published by UNODC in the last years, the first Global Study on Smuggling of Migrants, published in 2018, presents a wealth of information and has crucial implications for the design of policies and programmes. Similarly to other illicit organized crime activities, smuggling of migrants generates significant economic returns, often at the expenses of thousands of migrants who are killed, tortured and exploited every year. The Smuggling of Migrants Protocol is the only internationally agreed legal instrument designed to prevent and combat this phenomenon. Ratifying or acceding to this instrument and ensuring its full implementation, including the defining element of 'financial and other material benefit', are crucial first steps to effectively address this crime and protect migrants.
Smuggling of migrants is determined by a combination of demand and supply elements and a comprehensive approach to counter this crime needs to take into account not only its geography, but also the complex contributing factors. A response limited to increasing border enforcement often results in the displacement of the smuggling routes or a change in smuggling methods, but it is unlikely to reduce the size of the problem. Limiting the demand for migrant smuggling can be achieved by broadening the possibilities for regular migration and increasing the accessibility of regular travel documents and procedures. Also, raising awareness in communities of origin as well as in refugee camps about the dangers of being smuggled may also help reduce the demand for these services. As for the supply side of this deadly business, approaches need to be tailored to the different smuggler's profiles. Providing alternative livelihoods programmes to communities that rely on income from migrant smuggling activity can reduce the economic drivers of small-scale smugglers, while larger smuggling networks can only be tackled effectively through improved regional and international cooperation as well as national criminal justice responses that include financial sanctions and other measures targeted at confiscating the proceeds of the crime. Corruption of border officers and migration authorities remains a fundamental enabler of this crime, thus anti-corruption mechanisms need to be enforced in these institutions. To know more about trafficking in persons and smuggling of migrants, please access the dedicated UNODC Module Series.
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