In practice, it may be difficult to distinguish between these two crimes in the first instance. In many cases, victims of trafficking may first start out as smuggled migrants. Consequently, in investigating trafficking in persons cases, it may sometimes be necessary to rely on measures against smuggling. It is critical, however, that those investigating smuggling cases be familiar with the crime of trafficking in persons as the consequences of treating a trafficking case as one of migrant smuggling can be severe for the victim.
In some cases it may be difficult to quickly ascertain whether a case is one of human smuggling or trafficking. The distinctions between smuggling and trafficking are often very subtle and there are overlaps. Identifying whether a case is one of trafficking in persons or people smuggling can be very difficult for a number of reasons:
– Some trafficked persons might start their journey by agreeing to be smuggled into a country illegally, but find themselves deceived, coerced or forced into an exploitative situation later in the process (by e.g. being forced to work for extraordinary low wages to pay for the transportation).
– Traffickers may present an opportunity that sounds more like smuggling to potential victims. They could be asked to pay a fee in common with other people who are smuggled.
However, the intention of the trafficker from the outset is the exploitation of the victim. The fee was part of the fraud and deception and a way to make a bit more money.
– Smuggling may be the planned intention at the outset but a too-good-to-miss opportunity to traffic people presents itself to the smugglers/traffickers at some point in the process.
– Criminals may both smuggle and traffic people, employing the same routes.
– Conditions for a smuggled person along the journey may be so bad it is difficult to believe a person could have consented to this.
Having said this, there are a number of key differences between migrant smuggling and trafficking in persons:
Migrant smuggling generally involves the consent of those being smuggled. Victims of trafficking, on the other hand, have either never consented or, if they initially consented, that consent has been rendered meaningless by the improper means of the traffickers.
To smuggle a person means to facilitate the person’s illegal border crossing and entry into another country. Trafficking in persons, on the other hand, need not involve the crossing of any border. Where it does, the legality or illegality of the border crossing is irrelevant. Thus, while migrant smuggling is always, by definition, transnational, trafficking in persons need not be.
The relationship between smuggler and smuggled migrant usually ends after the facilitation of the border crossing. Smuggling fees are paid up front or upon arrival. The smuggler has no intention to exploit the smuggled person after arrival. Smuggler and migrant are partners, albeit disparate, in a commercial operation that the migrant enters willingly. Trafficking involves the ongoing exploitation of the victims in some manner to generate illicit profits for the traffickers. It is the intention of the trafficker that the relationship with the exploited victims will be a continuous one and extend beyond the crossing of the border in the final destination. Smuggling can become trafficking, e.g. when the smuggler sells the person and the accumulated debt, or deceives/coerces/forces the person to work off transportation costs under exploitative conditions.
Source of the profit
One important indicator of whether a case is one of smuggling or of trafficking in persons is how the offenders generate their income. Smugglers generate their income from fees to move people. The trafficker in contrast continues to exert control over the trafficked victim in order to achieve additional profits through the ongoing exploitation of the victim.
As explained above, the offence of trafficking in persons may involve many different acts and many different actors. The offence is committed by acts of recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
Trafficking cases, by their nature, are very likely to involve other offences. These offences may be an integral part of the trafficking process, and can be used to prove that an element of the trafficking in persons offence has been committed. They can also be charged separately or utilized as alternative charges, depending on the legal system. They can also be called underlying offences to trafficking.
Other offences may be committed against the trafficking victim or others, but would not be an integral part of the trafficking offence. These should be charged separately.