3. Smuggling and trafficking

51. The Special Rapporteur observes the continued abuse of irregular migrants who are involved, whether deliberately or inadvertently, in smuggling and trafficking operations. Over time the process of human trade has become more complex, whereby smugglers and traffickers may use a combination of deceptive, clandestine, or even legal modes of migration, switching strategies at different stages of the journey, and involving both legitimate and illicit actors at the governmental and non‑governmental levels (inter alia, border officials, intermediaries, recruitment agencies, police officers, tourist agents, transport entrepreneurs and airline employees).[37] The facilitation of cross‑border movements has increased to such an extent that the networks rely on many players who may not be actively and knowingly participating in smuggling or trafficking activities as such. There is a concern that, in the process of preventing the proliferation of such networks and intercepting those involved, irregular migrants may not receive adequate protection.

52. Furthermore, due to such complexities, in certain cases there seems to be a largely superficial distinction between the two practices, as well as confusion about their definition and scope. In principle, trafficking is generally considered a crime against human beings, and routinely involves coercion, deception, abduction, debt bondage, abuse of power and financial gain for those who facilitate and profit from the trade, and general exploitation of the victims of trafficking. It can imply threats to personal safety, sexual and reproductive health, and can entail abuse and degrading treatment during the process. By contrast, smuggling of migrants has been seen essentially as a crime against States, whereby the procurement of the illegal entry into a country of a non‑citizen is seen as a violation of States' sovereign power to refuse entry and expel aliens.[38]

53. In principle, smuggling is not, at least initially, a coercive practice because the potential migrant enters into a contract with the smuggler. However, smuggling practices have become much more comprehensive, as anti‑migration policies have become more restrictive, opening up migrants to infinite abuses, inter alia, sexual exploitation, physical assault, debt servitude, and abandonment. As such, smuggled migrants are often susceptible to violations which they may not have foreseen before agreeing to be smuggled. Moreover, in certain cases, smuggled migrants can also become victims of trafficking, further blurring the distinction and causing a false hierarchy of victimization.[39]

54. In this regard, the notion of consent to being smuggled becomes ever‑more complex. Once an irregular migrant is intercepted, it is up to the State in question to determine the migrant's level of complicity in the mode of irregular entry, leaving much latitude for assignment of culpability or, by contrast, victimization, which impacts the level of protection that migrants may receive. That is, an irregular migrant that is thought to have consented to being smuggled may be perceived as deserving less protection than a victim of trafficking who may be perceived to have been unknowingly exploited. These distinctions are further complicated by discriminatory sentiments pertaining to country of origin or assumptions based on race and gender.[40]

55. The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Sea and Air, both supplementing the United Nations Convention against Transnational Crime, contain a saving clause providing for the continued application of human rights, humanitarian law, and, where
applicable, refugee law.[41] But, while these branches of law continue to apply to irregular migrants, in practice such migrants continue to be vulnerable to exploitation and abuse due to their lack of legal status in a country.[42]

56. The purposes of the Trafficking Protocol are to prevent and combat trafficking in persons, especially women and children, to protect and assist the victims of trafficking, and to promote cooperation among States in order to meet these objectives.[43] The Trafficking Protocol provides that consent to exploitation is irrelevant where any of the "means" set out in the definition are used and calls upon States to establish the involvement of individuals in the process of trafficking as a criminal offence and mandates a number of measures to be taken to prevent and combat trafficking, unilaterally and in cooperation with other States.[44] Such measures include information exchange and training of relevant officials, strengthening border controls, and the security of travel or identity documents.

57. Despite these protections, victims of trafficking, often misinformed, commit administrative infractions, such as irregular entry, use of false documents and other violations of immigration laws and regulations, which make them liable to detention and contribute to their criminalization. Furthermore, the law of some States punishes as criminal offences irregular entry, entry without valid documents or engaging in prostitution, including forced prostitution. Victims of trafficking are thus often detained and deported without regard for their specific needs for protection and without consideration for the risks they may be exposed to if returned to their country of origin.[45]

58. The purposes of the Smuggling Protocol are to prevent and combat the smuggling of migrants, and promote cooperation among States parties to that end, while protecting the rights of migrants. In particular, it calls for special protection of migrants in the context of the right to life, the right not to be subject to torture or other cruel, inhumane and degrading treatment, as well as draws attention to the special needs of women and children. However, it is clear that the protection afforded to smuggled migrants is considerably less than that provided for victims of trafficking under the Trafficking Protocol, specifically because smuggled migrants are considered to have consented to the practice. The Smuggling Protocol's emphasis is on strengthening border controls and, while there is a prohibition on an individual from being
prosecuted simply for being smuggled ‑ it specifies that migrants shall not become liable to criminal prosecution for being the "object" of smuggling ‑ it is significant that irregular entry remains a criminal offence in many countries.[46]

59. In contrast with the definition of trafficking, although smuggling can be abusive and dangerous, its definition does not necessarily denote the occurrence of exploitation or a violation of human rights. In practice, however, the distinction between the two can be hard to draw and, as explained above, migrants who initially consent to being smuggled may end up in exploitative situations.[47] Due to the ambiguities in such practices, and not least owing to the proliferation of networks as a response to ever more restrictive anti‑immigration policies, it is particularly important that States receive irregular migrants perceived to be involved in trafficking and smuggling practices on an individual basis, investigating to the fullest extent their potential complicity, and providing for them guarantees of due process.