In practice, correctly identifying conduct as smuggling or trafficking has important consequences (see Mc Adams, 2015 as well as in Anti-Trafficking review, 2018). Smuggled migrants do not benefit from the more robust protection and assistance measures granted to victims of trafficking. Assistance and protection for victims of trafficking under the Protocol against Trafficking in Persons are greater than those afforded to smuggled migrants under the Protocol against Smuggling of Migrants. Penalties for smuggling offences are also commonly less severe than penalties for trafficking in persons.
Clearly determining whether a case is one of smuggling or trafficking may be complicated for several reasons, as illustrated by the following scenarios:
The example in Box 5 below shows the case of an organized criminal group engaged in both migrant smuggling and trafficking in persons concurrently. What began as a migrant smuggling venture involving ten migrants ended in the smuggling of nine migrants and the trafficking of one victim.
Mixed migration flows
A criminal organization entered contracts with 10 persons, to smuggle them from the origin country 1 to the destination country 2. Each person was quoted a fee of US$10,000. Upon arrival in destination country 2, nine people paid the US$10,000 and were released by the smugglers. However, the smugglers, seeking to maximize their profits, informed the tenth person that her smuggling fee was now US$30,000. The tenth migrant was unable to pay the increased fee and, instead of releasing her, the smugglers sold her to a brothel owner. The criminal organization has engaged in both migrant smuggling and trafficking in persons in the same event. What began as a migrant smuggling venture involving ten migrants, ended in the smuggling of nine migrants and the trafficking of one victim.
UNODC, In-depth training manual on investigating and prosecuting the smuggling of migrants, Module 2: Comparative analysis of migrant smuggling and trafficking in persons.
Given these examples, it is clear that what may start as an investigation into smuggling of migrants may end up as a trafficking case and vice-versa. The key is to investigate the conduct and surrounding circumstances, assess whether any offences have been committed and, if so, investigate and prosecute all crimes perpetrated.
It should be kept in mind that when abusive or inhumane treatment is involved the case does not automatically become one of trafficking. Rather, it may amount to aggravated smuggling, in accordance with article 6(3) of the Protocol against the Smuggling of Migrants. The offence will be one of trafficking in persons if, for example, the person concerned is recruited through deception, he or she is not permitted to leave, and is then exploited by the offenders. Ultimately, whether the elements of trafficking under the Protocol against Trafficking in Persons are satisfied (as transposed into the relevant domestic offence) will be determinative.
Where migrants no longer have freedom of choice and have been forced, intimidated, manipulated or coerced into complying with the smugglers' wishes - or have done so due to the abuse of their position of vulnerability - it must be determined whether the crime has become one of trafficking in persons. See the example in Box 6.
SOM or TIP?
Nok is a 20-year-old woman from South-East Asia. She is widowed and supports her two small children by selling vegetables. One day, her friend Patnaree approaches her. Patnaree says she can find Nok a job as a domestic worker in another South-East Asian country where she can make 10 times her current monthly earnings. Patnaree also promises to make all her travel arrangements and to pay for her trip if Nok agrees to repay her once she starts her new job in the destination country. Deciding that the extra income will benefit her family, Nok leaves her children in the care of her mother and begins her journey by bus in the company of Patnaree. Nok has no passport, but Patnaree assures her that she will not need one since she has friends at the border. Some miles before the border, they leave the bus and wait at a roadside cafe until they are joined by a truck driver called Than. Nok is surprised to see Patnaree pay to Than a significant sum of money before they both get into the truck with him and continue their journey to the border. They cross the border without any problems, as Patnaree promised. It is the only time Nok knowingly crosses a border on her trip to the destination country. The truck driver Than is friendly, but asks that Nok travels in the truck's closed rear compartment so as to avoid problems at the next border. It is dark, hot, and very uncomfortable in the back of the truck, but Nok agrees since she has no passport and can only rely on his advice and goodwill and Patnaree's friendship. It is a long trip, and Nok's journey in the rear compartment of the truck comes to an end in an empty field beside a wide river where Patnaree and the driver Than meet four men who are citizens of the destination country. The four men then take Nok across the river. Nok is told that she is now in the destination country. She is ordered to get in the back of a truck that is waiting at the side of the river. In the back of the truck are seven other women. Nok is afraid, no longer believing that she is to be given the job she was promised. When she refuses to get into the vehicle one of the men threatens her with a gun. The four men travel together in the cab of the vehicle. Nok and the other women are taken to a private house in a major city. Over a period of several weeks, the four men repeatedly physically and sexually abuse the women. They do not allow them to leave the premises. One man tells Nok that if she escapes, the police will put her in prison for being in the country without a passport and that she will never see her children again. He also threatens to locate and traffic her children if she even tries to escape. Other men visit the house, and Nok is forced to have sex with them, for which her four captors receive payment. She is not allowed to retain any of the money and is not allowed to leave the building.
Case-Study: Nok; UNODC, A Short Introduction to Migrant Smuggling
Exploitation, as a constituent element of trafficking (as opposed to smuggling), may appear to be a clear-cut difference between both crimes. Yet, this distinction is not always clear in practice.
The line between the two offences becomes less clear when, for example, a migrant is exploited during the smuggling venture or upon arrival in the destination country. For example, the migrant may be faced with the option of being stranded in an unknown country or paying the smuggler an even greater amount of money than what had been originally agreed to. The migrant may fear for his or her safety and therefore agree to make the payment. If he or she cannot afford to make such payment, they may seek to provide other benefits which amount to exploitation (for instance, sexual services). The smuggler could also propose to place the migrant in a situation of debt bondage, whereby the travel would proceed under the condition that, once in the country of destination, the migrant would work in dependence of the smuggler/trafficker. The work conditions may be abusive. In this case, a closer look will be needed to clarify whether the case is one of aggravated smuggling (article 6(3)(b)) or trafficking.
The examples cited above illustrate 'grey areas' in respect of which the ultimate decision regarding whether a person is a victim of trafficking or a smuggled migrant may only be properly taken by looking to the case at hand in its entirety and in light of its discrete circumstances.
See the following sub-sections for further cases: