Smuggling and Trafficking: Rights, Wrongs and Intersections
By Judith Santiago*
In preparation for the High-Level Dialogue on International Migration and Development at the United Nations (Oct. 3-4, 2013), the People’s Global Action on Migration, Development, and Human Rights , taking place at the Church Center for the United Nations, invited global migrants’ rights organizations and advocacy groups to collaborate and prepare contributions to take to the intergovernmental meetings. A panel discussion, “Smuggling and Trafficking: Rights, Wrongs and Intersections” was one of several sessions offered for dialogue.
Francois Crépeau, United Nations special rapporteur on the human rights of migrants and panelist for the session on Smuggling and Trafficking, opened the discussion with a bold statement. Quoting from the Canadian Council of Refugees, Crépeau said, “Smuggling is a nasty business, but it saves lives.”
The October 2 panel discussion on Smuggling and Trafficking: Rights, Wrongs and Intersections also featured Pia Oberoi, a migration advisor for the United Nations High Commissioner for Human Rights, and Rebecca Napier-Moore, from the Global Alliance Against Traffic in Women (GAATW). The panel discussion was sponsored by GAATW and the Women & Global Migration Working Group. The week-long event was organized by the Peoples’ Global Action on Migration, Development and Human Rights (PGA), and the UMC delegation to the PGA was co-sponsored by The General Board of Global Ministries and United Methodist Women. Respective agency delegates and staff attended the event, which offered a platform for voices to be heard.
According to Crépeau, the distinction between smuggling and trafficking is complex. Crépeau pointed out that some people who have been smuggled consented to that agreement, and while they might end up in exploitive situations like trafficking, the lines between smuggling and trafficking are difficult to establish. He shared hopes that distinctions between irregular migration, migrant smuggling and human trafficking would be introduced to the high-level discussions.
By definition, trafficking includes exploitation and entails a number of human rights violations; smuggling is the service of moving people from point A to point B, and does not necessarily involve a human rights violation—although smugglers will often take advantage of migrants’ vulnerability.
Over-Criminalization of Migrants
A closely-related topic is criminalization of irregular migrations, in which a people cross an international boundary without valid passports or travel documents or do not fulfill the administrative requirements for leaving or entering a country. Irregular migrants “are not criminals and should not be criminalized,” according to Crépeau. He stated that while smuggling may be made a criminal offense, irregular migration should not be.
Crépeau said that he’s seen legislation that provides for long prison sentences for those who help people migrate irregularly or who host/transport undocumented migrants, even if they do so without payment.
In Canada, where Crépeau is from, the maximum penalty for migrant smuggling is prison for life, which is the equivalent punishment given for crimes against humanity. Crépeau said this was “manifestly absurd when you think of the difference between the two activities.”
Over-criminalization leads to charging people who help migrants along the way even when their participation has been limited to peripheral acts. Crépeau said he’s met a 15 year-old migrant from Afghanistan who was charged with smuggling and detained for several months because he steered the boat that carried a group across the Mediterranean. Even a migrant (or accomplice to the act of smuggling, knowingly or unknowingly) who steers the boat can now be charged with a crime. Migrant smuggling is against the law, but the main smugglers, those at the organized crime level who bankroll the whole operation, are rarely caught and brought to justice.
In addition, some countries are placing very harsh border control methods, such as interception and off-shore detention, to break patterns of smuggling. However, the impact is felt most punitively on the migrants being smuggled. As a result, governments are having anti-smuggling discourses to put in place very harsh anti-mobility policies.
“Dialogues like these are critical for the church,” said Global Ministries' Assistant General Secretary, Nora Colmenares. “It’s important for us to understand the migration realities faced by our missionaries and the people they work with around the world. It helps us to stay informed of human rights challenges and injustices.”
Policies ‘Unbalanced and Gender Divisive'
Pia Oberoi, one of the featured panelists, said “the growing interest in smuggling as an offense has taken place at the same time as a rising intolerance to irregular migration and a rising interest in stopping such migration. There are also a number of assumptions by which policies toward smugglers and irregular migrants are made, and these underlying assumptions, in most cases, are quite damaging,” said Oberoi.
Oberoi referred to the tendency to relate human trafficking only to women, while relating smuggling only to men. She said the policies are “unbalanced and gender divisive.” She also refuted the notion that smuggled persons are less in need of protection because they agreed to the arrangement voluntarily.
Rebecca Napier-Moore pointed out that “talking about consent only criminalizes people…the act of smuggling doesn’t define the smuggled person.” Napier-Moore also said that in some cases, anti-smuggling efforts are hurting refugees who are seeking safety.
Overall, the information-packed session sought to inject human rights into the conversation over enforcement and beefed-up border control. The objective should be to open safe channels of migration so that smuggling is a less attractive alternative and traffickers have fewer opportunities to find and isolate their victims.
“While migrants are often victims of unscrupulous smugglers, they’re also agents of their own future,” stated Crépeau. Smuggling operations will benefit when migrants see no other way out for their families to flee their country. For migrants, smuggling may be their only opportunity to save their lives, protect their dignity, and create a better future for their children. The states, according to Crépeau, are not yet ready to accept this reality. “We have to work with [nation] states to get that idea across,” he said.
*Santiago is the Content and Editorial Coordinator for the United Methodist General Board of Global Ministries.
Francois Crépeau, United Nations special rapporteur on the human rights of migrants, helps to make plain the complex differences between smuggling and human trafficking. Photo: Judith Santiago
Participants gather at the Rally for Migration Rights, Foley Square, New York City, October 2, 2013. The rally was followed by a march over the Brooklyn Bridge in support of the human rights of migrants. Photo: Christie R. House