As the rise in trafficked humans, rise in irregular migrants and refugees this piece aims to tackle the difference of this re-emerging phenomenon.
Trafficking in human beings and the smuggling of migrants has become a global criminal problem and more than 90% of countries have legislation criminalising the act of human trafficking (UNODC 2014). However, national legislation does not always comply with the protocols therefore definitions of trafficking and smuggling are then subject to states’ interpretations. The official definitions of human trafficking and the smuggling of migrants are stated in Article 3 of each of the United Nations Palermo Protocols (2000).
Trafficking and smuggling concepts only became more prominent in literature in the late 1990s (Laczko, 2005, Burke, 2013, Laczko 2000). As a result, debates have risen over the precise definitions for the concepts for which Davidson (2010: 249) argues, “trafficking is an umbrella term for a process that can lead to a variety of outcomes”. This essay will investigate whether there is a distinction between trafficking and smuggling. It argues that although there are many overlaps in terminologies and definitions relating to trafficking and smuggling, trafficking is ‘fundamentally different’ from smuggling (Davidson, 2010). However, this is not to say that the difference is clear-cut. This essay will show that there is no clear-cut distinction through examining similarities and differences between trafficking and smuggling by focusing on the scholarly debate through the themes of act, movement, consent, exploitation, purpose and identifying victims.
Act and Movement
Scholars have criticised the Palermo Protocol for framing that there is a clear distinction between trafficking and smuggling when in reality this is not always the case as victims of smuggling can become victims of trafficking (Davidson 2010, Gallagher, 2014, Vayrynen 2005). In agreement, Dottridge (2007) asserts that the complexities of defining trafficking have caused problems when it comes to national legislation. This problem is further exacerbated by the fact that different States and trans-national organisations use a range of terminologies to define the concepts: ‘alien smuggling, illegal immigrant/migrant smuggling, trafficking of human beings, trade of human beings’ (Salt, 2000). While individual scholars have opted for the terms: “irregular migrant/migration” (Massey, 2015), “human commodity trafficking” (Williams, 1999), “human smuggling” (Vayrynen, 2005) and “human trade and trafficking in person” (Meese, 1998).
This confusion provides the foundation for the dichotomy in the scholarly field relating to trafficking and smuggling. In Europe, 2015 saw the surge of illegal transportation of refugees across the Mediterranean to Europe. For the United Kingdom, politicians failed to distinguish the difference between trafficking and smuggling as both terms were used to identify the victims as being trafficked or smuggled and the perpetrators as “people trafficker” and “smuggler” (Guardian 2015). Aronowitz (2001) asserts that there is no clear distinction between trafficking and smuggling as the two concepts have some similarities and traces these to the notion of movement. For Aronowitz, both concepts are forms of irregular migration, of which both individuals of trafficking and smuggling leave their country of origin willingly and are both at risk of being trafficked, as they are illegal migrants. Similarly, Vayrynen (2005: 143) argues, “smuggling is a special case of illegal migration…trafficking is a sub-category of smuggling. Likewise, Adebayo (2009) opts to use smuggling and trafficking synonymously and state that smuggling is often called trafficking. Together, these scholars indicate that trafficking and smuggling are under the same category and therefore have no definitive distinction.
In contrast, the protocols do show that there is a difference between the two concepts. The protocols define smuggling as violating state rights while trafficking violates human rights as the victim is subject to exploitation (UNODC, 2000). The International Criminal Court also defines trafficking as a crime against humanity (2002). Graycar (1999) highlighted that smuggling is concerned with the manner in which individual/s enter a country with the aid of a third party. Whereas trafficking is considered more complex as several factors have to be addressed to conclude that trafficking has occurred (Graycar 1999). Establishment of whether consent to irregular migration and working conditions, elements of deception, violence, coercion or force have been used to elevate the individual from voluntary undocumented/smuggled migration to trafficking need to be taken into consideration (Salt 2000). This is also the key component evident in the protocols Article 3 that distinguishes trafficking to smuggling – coercion, force, fraud and exploitation. Overall, the above scholars acknowledge that trafficking is different from smuggling in the manner of movement/migration however; elements of smuggling can be evident in trafficking and smuggling inversely.
An example of this overlap can be seen with the Eritrean and Sudanese migrants who paid smugglers operating in the Sinai region for access and help in passage to enter Israel. Some migrants were imprisoned by smugglers and used for ransom purposes from the victims’ families. Those unable to pay the ransom were then exploited and forced to work of their debt. Further, violence including sexual violence was inflicted on the victims of whom some were children (Human Rights Watch, 2014). Thus, a critic of using trafficking to mean smuggling and eliminating distinction between the two concepts should not be faulted as the two concepts do overlap when it involves movement or migration.
However, as discussed in the aforementioned paragraphs distinguishing the concepts is hindered by States own interpretations of the protocols. The differences identified in this section are through the notion of movement of crossing borders, but countries such as Nigeria and the United States (USA) have their domestication of the terms. Nigeria’s definition of trafficking includes the movement of both national and cross border (Nwogu 2005). Likewise, the USA in their definition does not include movement as they acknowledge that trafficking does not require the crossing of a border (US Dep. Of State 2006). Further, the USA concentrate more on the final outcomes of the individual’s circumstances to determine if the individual has consented to the smuggling or are victims to traffickers (US Dep. of Justice 2005).
This section has described the issues in identifying the distinctions between trafficking and smuggling by looking at movement as it is believed that for smuggling to occur illegal border crossing has to occur differentiating smuggling to trafficking. However, this is not necessarily always the case, as both concepts overlap and individuals can be victim to both trafficking and smuggling. Moreover, with the example of Nigeria and USA movement does not always mean cross border smuggling it can also be internal. As well as the example of the Eritrean and Sudanese migrants who initially consented to the smuggling but not the trafficking that occurred after. Thus, the failure in a precise unified and global definition of the two concepts is not extraordinary especially when the concepts are still novel in the academic field. Further, efforts by the UNODC to improve knowledge of trafficking and smuggling in global prosecution will help future cases and will aid in the academic field. The following section evaluates the differences and similarities of trafficking and smuggling when looking at consent, exploitation and purpose.
Consent, Exploitation and Purpose
The main distinction in the definitions by the protocols is the role that consent plays in trafficking and smuggling. There is a consensus among scholars that trafficking involves severe exploitation of victims that do not consent to the exploitation (Salt 2000). Examples of exploitation purposes consist of prostitution, forced labour, slavery, child trafficking and removal of organs. In contrast, victims of smuggling may have initially consented to the facilitation of illegal border crossing but may not have consented to being exploited (UNODC 2014). Shelly (2014) argues that the difference between the two is whether the migrants are willing participants or unwilling. Kyle and Koslowski (2011) argue against this and assert that there is no clear line between trafficking and smuggling. Similarly, Tamuray’s (2007) evaluation of the effect of migrant’s exploitation by smugglers also does not provide a clear-cut distinction as consent is nullified when an individual becomes situated in an exploitive environment. This is the same for victims of trafficking who consented to working initially, but they then found themselves having been deceived and subject to exploitation. This was the case in S vs Emmanuel Uche Odii and Others, where two females were deceived by traffickers who offered the females paid domestic work to later finding themselves subject to sexual exploitation (UNODC).
Often if the victims have consented to being smuggled, smuggling is then understood as an agreement and transaction between the smuggler and the migrant (Triandafyllidou 2012). The purpose of trafficking is for exploitation compared to smuggling, which is often a short-term agreement between the smuggler and migrant for the purpose of illegal entry and financial gain. In short, the economic paradigm of the smuggling of migrants is a business driven by financial motivation. However, both trafficking and smuggling are seen to be businesses driven by monetary gain although the profit for trafficking comes from the sales those trafficked and not from the movement of which that is the profit for smuggling (Gallagher 2001).
Nonetheless, consent is still key to distinguishing the means of the acts between trafficking and smuggling. The UNODC has provided a checklist for governments and authorities to determine what constitutes as trafficking for which force, coercion, abduction and abuse of powers are amongst the list. If the individuals have not consented to the above means and the sole purpose of these means is for exploitation then the individuals are victims of trafficking. While, if the individuals agree to poor travel conditions or paying off their travel debt through work (not exploitive work) and consent to these in return to be smuggled into a country they are not resident to these individuals are solely smuggled migrants and are subject to criminalisation under Article 6 of the Protocol.
This section has described how consent plays a key role in determining whether individuals are to be classified as trafficked or for those being smuggled into a country as smuggled migrants. Further, this section has established that both trafficking and smuggling are organised criminal businesses that seek economic gain. Additionally, this section has shown that there are still overlaps within the two concepts and regardless if trafficking is for the purpose of exploitation, smuggling can also ultimately lead to exploitation. Ultimately, there is no clear-cut distinction between the trafficking and smuggling. The following section describes a brief discussion of the differences between identifying victims of trafficking to migrant smuggling.
Iselin (2003) has asserted that there is distinction between victims of trafficking and smuggled migrants; victims of trafficking are identifiable as they are subject to exploitation though in smuggling there is no identifiable victim as consent and a business transaction has occurred between the individual being moved voluntary. Contrary, Gallagher (2014) has argued that this is not always the case; smuggling is often closely linked to asylum seeking and Gallagher notes that individual situations should be taken into account when differentiating the two as in some cases the smuggled migrants are fleeing from persecution or violence. Further, Hathaway (2010) has emphasised that “smugglers play a critical role in assisting refugees to reach safety”. Therefore, there is some evidence to suggest that smuggled migrants are victims from the onset like those in trafficking. Ultimately, there is no clear distinction in identifying the victims.
In conclusion there is not a clear-cut distinction between trafficking and smuggling. (Triandafyllidou 2012) summarises that it is very hard to methodologically distinguish the two concepts. However, this essay acknowledges that the fundamental distinction is directed towards consent and movement. Trafficked victims do not consent to the act of exploitation whilst smuggled migrants consent to being transported. If illegal/irregular migration occurs without the individual experiencing inhumane transportation and becoming victim to human rights violations and being exploited the former definition is appropriate. When the smuggled is successful in their illegal migration, smuggling is then defined as a crime against states rights and they are not vulnerable unlike the trafficked victims who firstly do not consent to their situation of being exploited for profit and are victims from the onset.
 For the purpose of the essay the term ‘trafficking’ will be used to signify trafficking in human beings.
 ‘smuggling’ will be used to signify smuggling of migrants.