The problem of human smuggling and trafficking

Dr. Ruwantissa Abeyratne

Human smuggling: Trafficking in persons is a despicable and virulent crime against humanity. In its Country Report of 2004 on the subject of irregular migration, the United Nations has recorded that trafficking in human beings claims over 600,000 to 800,000 men, women and children annually, who are trafficked across international borders, the majority being traded into commercial sexual exploitation.

This does not include trafficking of humans within States themselves. The United Nations Children's Fund (UNICEF) estimates that up to 200,000 children are trafficked annually in the Western and Central African region. Most affected by the crime are rural residents, children in large families and ethnic minority groups. Age, gender and low education are regarded as the largest risk factors. The principal lure of traffickers is the offer of employment.

Trafficking must not be confused with smuggling, the latter being a less offensive act where there is no victimisation, exploitation or coercion, although in many instances the distinction between the two tend to be blurred. Illegality or irregularity in migratory movements, although generally viewed from the perspective of the destination country, may occur in either one of the countries of origin, transit or destination or all of them.

The country of origin becomes involved when a person leaves that country without a valid passport or an equivalent document of identity as required by national legislation. As regards the country through which an illegal migrant travels - or the transit country, its laws may be infringed upon if the person being smuggled did not have a transit visa to travel through that country.

From the perspective of the country of destination, the main characteristics of illegal or irregular migration are more readily discernible. They are: the arrival by a person in a country and attempt thereafter to enter without compliance with required formalities or without authorisation required by law for admission or stay in that country; or the cessation by a person of meeting conditions to which that person's stay or activity is subject.

Although there is a distinction between trafficking and smuggling of humans, the difference lies in the gradation or seriousness of the offence.

Both are influenced by economic gain and are perpetrated through the common act of moving humans across borders or from one place in a country to another.

Human migration is a compelling social indicator of the future and is driven by economic and social factors. Economically motivated migration characteristically takes place between countries which show a marked disparity in labour market situations (typically when one country shows shortage of labour and the other shows a surplus of labour) and sharply different levels of income.

The magnitude of the problem naturally spawns opportunities for profit making which in turn have given rise to the multi billion dollar human smuggling industry. In 1995, the Economist recorded that around the world, smuggling organisations ranging in size and degree of sophistication are smuggling tens of thousands of people from poorer to richer countries. In the process, they are earning at least $7 billion per year, with the potential for even greater future profits.

The risk element involved in the smuggling of humans is far less than the smuggling of narcotics and therefore some gangs of notoriety have reportedly abandoned the drug trade in favour of smuggling humans.

Human smuggling, to be defined as such, has to be composed of two different kinds of activity: the exchange of money or other form of payment between the would-be illegal migrant and smuggler; and the arrangement by a 'facilitator' of passage across an international border.

The movement has to be voluntary and the passage from one border to another should be illegal. Smuggling is a popular recourse and an easy 'way out' to the illegal immigrant who faces huge distances to travel; difficulties imposed by States' anti-immigrant restrictions; and difficulties adjusting to life in the host country.

Ironically, the last reason - difficulty in adjusting to life in the host country - works to the advantage of the smuggler. The process of payment, which is the essential part of the transaction of smuggling, is not always concluded with the act of smuggling.

It may extend well beyond that point. The form and method of payment often reach insidious proportions of exploitation where the smuggler may discourage payment at the outset, making the illegal migrant an easy victim to exploitation and abuse.

In many cases, the person seeking to be smuggled into a country illegally welcomes such deferral of payment making the smugglers' business flourish through easier recruitment of candidates for illegal migration. This situation also strengthens the position of the smuggler to tighten his grip on the migrants and use their virtually indentured services for unlawful and criminal activities.

A 1995 study on smuggled women carried out in Belgium suggests that although most women were not required to pay the smuggler in advance, a high proportion of them had found themselves on arrival to be required to perform various services to the smuggling network.

The Vienna-based International Centre for Migration Policy Development (ICMPD) has revealed that 15% - 30% of those who illegally went into Western Europe for purposes of employment or residence, estimated in 1993 to be a figure of 250,000 to 300,000 persons, used the services of smugglers.

Concerned that the activities of criminal organizations that profit illicitly by smuggling human beings were becoming a threat to the world community and recognizing that international criminal groups often convince individuals to migrate illegally by various means for enormous profit, the United Nations, at its 48th General Assembly in December 1993, adopted Resolution 48/102 on the prevention of smuggling aliens. This Resolution makes mention of smuggling of illegal migrants as an activity that endangers the lives of those smuggled and imposes severe costs on the international community.

The United Nations noted that smuggling of aliens can involve criminal elements in many States and condemned the practice of smuggling aliens in violation of national and international law.

Resolution 48/102, while urging States to adopt measures to frustrate the objectives and activities of smugglers of illegal migrants, identifies the International Civil Aviation Organisation (ICAO) as one of the specialized agencies of the United Nations that could consider ways and means to enhance international co-operation to combat the smuggling of aliens.

At the same meeting, the General Assembly of the United Nations adopted Resolution 48/103 on crime prevention and international justice which reaffirmed the importance of the United Nations crime prevention and criminal justice programme and the crucial role the Organisation has to play in promoting international co-operation in crime prevention and criminal justice.

Resolution 48/103, inter alia, invites governments to lend their full support to the United Nations crime prevention and criminal justice programme.

In a subsequent 1997 resolution the United Nations General Assembly, at its fifty-first session, inter alia, recognised that international criminal groups often convinced individuals to migrate illegally by various means for enormous profits and that socio-economic factors influenced the problem of the smuggling of aliens and also contributed to the complexity of current international migration.

The Assembly requested States to co-operate bilaterally and on a multilateral basis to prevent the use of fraudulent documents and reaffirmed the need to fully observe international and national law in dealing with the smuggling of aliens, including the provision of humane treatment and strict observance of all human rights of migrants.

Following up on its early initiatives, the United Nations General Assembly, at its 53rd Session, held in December 1998, adopted Resolution 53/111 establishing an open-ended inter-governmental ad hoc committee for the purpose of elaborating a comprehensive international convention against transnational organized crime.

This Resolution gave rise to United Nations Convention against Transnational Organised Crime (which was still in draft form at the time of writing). The purpose of the Convention is to promote co-operation to prevent and combat transnational organised crime more effectively.

The Convention, by Article 3, requires Contracting States to establish as criminal offences, when committed internationally, the act of agreeing with one or more persons to commit a serious crime for any purpose relating directly or indirectly to the obtaining of financial or other material benefit and conducted by a person with knowledge which is tantamount to participating in criminal activities of an organised criminal group.

The Convention also considers organising, aiding, abetting, facilitating or counselling the Commission of serious crime involving an organised criminal group to be a criminal offence.

The Convention attributes to any person who aids and abets a crime, knowledge, intent, aim and purpose to commit such crime as provided for in Article 3, which makes the conduct by a person who knowingly aids and abets a criminal or criminal organisations a crime.

The provision does not impute liability to any person who aids and abets a crime if that person ought to have known that his conduct would aid and abet a crime. In other words, any person who commits a crime under the Convention should essentially have the knowledge that his conduct would facilitate, aid or abet a crime.

The Protocol which supplements the Convention (which was also in draft form at the time of writing) specifically addresses the smuggling of migrants by land, air and sea and records in limine, the concern of the States Parties to the Protocol that the smuggling of migrants may lead to the misuse of established procedures for immigration, including those for seeking asylum.

The Protocol defines the smuggling of migrants as the procurement of the illegal entry into or illegal residence of a person in [a] [any] State Party of which the person is not a national or a permanent resident in order to obtain directly or indirectly, a financial or other benefit.

The Protocol defines illegal entry as crossing of borders without complying with the necessary requirements for legal entry into the receiving State.

The purposes of the Protocol are to prevent, investigate and prosecute the smuggling of migrants, when involving an organised criminal group, as defined in the Convention and to promote international cooperation to meet these objectives. The Protocol excludes the prosecution of persons who are smuggled, thus exclusively applying only to those responsible, directly or indirectly, in carrying out the act of smuggling.

Article 4 of the Protocol requires States Parties to enact domestic legislation that would criminalise, inter alia, the act of producing a fraudulent travel or identity document.

This would also mean that a person who aids and abets such an act would be deemed to be criminally liable under the Convention. Article 12 of the Protocol provides that State Parties shall adopt such measures as may be necessary, in accordance with available means, to ensure that travel or identity documents issued by them are of such quality that they cannot easily be misused and cannot readily be unlawfully altered, replicated, falsified or issued.

The provision also calls for States Parties to ensure the integrity and security of travel or identity documents issued by or on behalf of the States Parties and to prevent their unlawful creation, issuance and use. Numerous efforts are being made by the international community to eradicate the scourge of human trafficking. UNICEF, UNHCR, IOM and ILO are in the forefront along with many governments, regional, international governmental and non governmental entities.

Protection, assistance, identification of victims and training personnel on assisting victims are some of the areas of concentration. There is an Expert Group on Trafficking in Persons in the European Union, as also various legislation in several countries against prostitution and trafficking.

The CARICOM (Caribbean Community) has enacted women's legislation on issues such as prostitution and forced labour, as has the Republic of Korea by its anti prostitution and anti trafficking law of 2004. These are but a few examples across the world, of bold legislative initiatives against the crime. The United States as well as various countries in Asia and Europe collect statistics of illegal migration and trafficking with a view to combating the problem.

What is needed as a proactive measure are more concentrated efforts at analytical work not only regarding statistics but also regarding the socio-political trends that give the trafficker an incentive and advantage. Experts have called for more effective cross border collaboration to combat child trafficking and model legislation that outlaws trafficking of humans in domestic jurisdictions.

The crime goes to the root of a society and exploits its weaknesses. Therefore, social welfare is a critical need in societies that lend themselves to being easy targets for trafficking.

Also recommended are witness protection programmes for victims of trafficking, government to government cooperation, training of police and customs officers to be more sensitized to the crime.

Lastly, there must be a sustained programme to assist the victim, in obtaining vocational training and job placement, along with much needed social support to facilitate rehabilitation.