Published in January 2019.

 

 
  This module is a resource for lecturers  

 

Differences and commonalities

 

The table below illustrates the differences between smuggling of migrants and trafficking in persons. It is important to bear in mind that, despite these differences, the crimes may overlap. This is explored further below.

 

Smuggling of Migrants

Trafficking in Persons

Geography

Smuggling always involves the crossing of international borders. It is a transnational crime.

Trafficking may occur entirely within the borders of one country or may occur transnationally.

Purpose

Migrant smugglers act to obtain a 'financial or material benefit'.

The purpose of trafficking in persons is the exploitation of the victim.

Consent

Consent is not an element of the definition of smuggling of migrants. It should be noted that, in practice, smuggled migrants generally consent to be smuggled.

Victims of trafficking in persons may consent to the act or exploitation, but consent is irrelevant if means have been used (and always if the victim is a child as means need not be established).

Exploitation

Exploitation is not an element of smuggling of migrants. Where smugglers do exploit migrants, this may constitute aggravated smuggling or, in some cases, trafficking in persons.

Exploitation is the purpose element of trafficking in persons.

Profit

Profit ('financial or other material benefit') is the purpose element of smuggling of migrants.

Profit is generated by provision of a service (facilitation of illegal border crossing, enabling stay, or document fraud) to smuggled migrants.

It should be noted that, in practice, traffickers likely aim to generate profit through exploitation of the victim.

 

Victimization

Smuggled migrants are not "victims" under the Protocol against the Smuggling of Migrants. While the term "victim" is not used in the Protocol, they may be considered victims of crime in situations of aggravated smuggling, where their lives and safety are endangered, or where they are subjected to inhuman or degrading treatment including exploitation.

Persons who are trafficked are seen as victims of the crime of trafficking in persons. They may also be victims of other crimes committed in the course of trafficking.

Perpetrator

Smugglers may be opportunistic individuals, organized criminals, the migrant's own family or friends or others, but only where they act for financial or other material benefit.

Traffickers may be organized criminals, the victim's own family or friends or others.

Notwithstanding the differences described above, smuggling of migrants and trafficking in persons also share commonalities. Importantly, both crimes may - or, rather, are likely to - seriously endanger the lives, safety and well-being of the individuals concerned. As such, smuggled migrants and trafficked persons both benefit from assistance and protection measures under the respective Protocols, though the specific obligations placed on States parties are different. Broadly speaking, the Protocol against Trafficking in Persons grants a greater standard of protection, consequent on the recognition of trafficked persons as victims of crime.

Smuggling and trafficking also often occur along the same routes, use the same methods of transportation and, in some cases, are carried out by the same perpetrators. Persons who are smuggled may also be victims of trafficking or may become victims during or following the smuggling process. Indeed, the work of migrant smugglers often benefits human traffickers. As further explained below, due to the often unequal power relationship between smugglers and their customers, smuggled migrants are particularly vulnerable to being trafficked during the smuggling process. Furthermore, while smuggling of migrants is a voluntary process, this should be seen in light of the observation made in previous modules that migrants often have little choice but to use the services of smugglers (See Modules 1 and 3).

 

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