People Smuggling vs Human Trafficking: A Question of Agency?

9 October 2019
Policy Innovation

Sasha Jesperson  | Co-founder and Director, ITERU

Human trafficking has become a priority for governments worldwide, which have sought to strengthen victim-centred responses. These efforts have been a major step forward in protecting the human rights of trafficking victims. However, victim-centered responses often reinforce the well-established dichotomy between helpless victim and barbaric exploiter. While there are many cases that firmly fit the definition of human trafficking, where an individual is coerced into exploitation­—as some of my previous posts here and here indicate—human trafficking and people smuggling are not as distinct as the UN Protocols suggest.

Gadd and Broad point out that “political claims-making about modern slavery tends to rely on a portfolio of racialized binaries Anglophone governments have long deployed to justify greater immigration control.” In the process of tightening border controls, governments effectively create a role for criminal groups to facilitate migration. This, in turn, sets up a binary between “deserving victims and non-deserving illegal immigrant.” In reality, defining a practice as smuggling or trafficking is not straightforward even when it is assumed to be. This is apparent in at least two examples discussed here: first, the exploitation of migrants—those who choose to move but are vulnerable because of their irregular status, as discussed in the case of Sudan; second, the smuggling of people into exploitative labour, such as Albanian minors.

In both instances, individuals choose to travel but end up in exploitative situations that fit the definition of human trafficking. As is further explained below, in these cases, the victim-centred response to human trafficking is not wholly appropriate, and may undermine the agency of migrants as well as skew overall numbers of trafficking victims. Even for those with less agency, there is a risk anti-trafficking measures might diminish economic opportunity.

Passport control signage. Unsplash/Daniel Schludi

The role of consent is the key difference between people smuggling and human trafficking. People who seek to leave their homes, whether they are fleeing conflict or persecution, often rely on irregular migration routes and actively seek out smugglers to facilitate their journeys. By contrast, human trafficking is done without the consent of those being trafficked, either through the use of force or other forms of coercion as outlined in the Palermo Protocol. The lines distinguishing smuggling and human trafficking, however, are not always clear cut in practice. Below, I will explore examples where people smuggling crosses into human trafficking, but where a victim-centred response is not helpful.

For consenting migrants, the potential for exploitation increases as the means to pay for the journey decrease. Migrants who are able to pay for their journey, whether upfront or in segments, are less likely to be trafficked. They are in a position to negotiate with their smugglers, and these journeys usually end up being “express”. However, along many migration routes, the risk of kidnapping for ransom or exploitation has increased, especially for wealthier migrants, as host communities seek to benefit from their transit. Even for those who are not held for ransom, they are reliant on their smugglers to uphold their end of the deal, often in countries where migrants are particularly vulnerable because they have no adequate protections in the law or access to any forms of redress, or because authorities are complicit with smugglers. In other words, irregular migration, even when consensual, involves a high risk of exploitation, and a situation of smuggling can devolve into one of human trafficking. Furthermore, for migrants who need to work throughout their journey, they are much more vulnerable to exploitation and bonded labour. This risk of exploitation is clearly evident for migrants crossing Sudan, where although the majority are aware of the risk, they choose to travel anyway.

Albania, where minors are smuggled into exploitative labour, provides another example of the blurred distinction between people smuggling and human trafficking. For Albanian teenagers and young men, parents often actively facilitate part of their movement. The goal is for their children to seek asylum and remain in Europe, where prospects of sustaining a livelihood are perceived as more promising. In fact, the decision to migrate is celebrated within towns in Albania. Still,  those migrating face the pressure to pay back the money owed for the journey, and to earn sufficient money to send back to support their family. It is unsurprising then that a high number of young Albanians abscond from foster parents or safe houses for trafficked victims in the UK. Residing in foster care does not generate income for these young men, which is their primary preoccupation. Without legal routes to employment, they often resort to illegal trade and thus criminal groups. Criminal groups are, in turn, taking advantage of this supply of illegal minors and young people, who are ready to work. Nevertheless, the idea that these migrants are passive is problematic.

In the UK, victim-centred responses do not always meet the needs or desires of the individuals to whom they are targeted. In fact, they may be unwanted interventions, and there are cases where individuals “rescued” by police were angry and thus protested. The result is a disjuncture between a human rights-based approach and what migrants actually want. For example, Reitano argues that “often what the international community labels as human trafficking are in fact locally acceptable labour practices that offer the only meaningful employment available.” The challenge then is to distinguish between what are on the one hand trafficking crimes against victims, and on the other, illegal border crossing crimes against the state. And to further differentiate between the types of situations and intervene in the worst cases. Such prioritization will improve how resources are deployed and, most importantly, better assist those suffering because of a crime where the product is human beings.

This article has been prepared by Sasha Jesperson as a contributor to Delta 8.7. As provided for in the Terms and Conditions of Use of Delta 8.7, the opinions expressed in this article are those of the author and do not necessarily reflect those of UNU or its partners.

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