When confusion over smuggling and trafficking plays into the hands of criminal gangs

Attending a three-day workshop in Bangkok last week, on the ‘Smuggling Framework’ provided me with the best opportunity in a long while to consider the mounting tensions in international law and policy practice in tackling the problems of people caught up in the business of smuggling and trafficking.

The workshop was jointly organised by the Global Alliance Against Trafficking in Women (GAATW)and the UN Office of the High Commissioner for Human Rights (OHCHR).  Taking place in Thailand, it was able to consider migration in a part of the world where the standard of regulation is very poor and regional cooperation through the ASEANgroup still very rudimentary. 

Thailand on its own has acknowledged the presence of some two million migrants within its borders, though NGOs in the region believe the real figure is closer to three million.  The high levels of economic integration with in the region brings work hungry migrants and regional refugees across frontiers in large numbers, but poor management by government officials means that the fate of many is to become irregular migrants either at the point of crossing the frontier, or within a short period after arriving in the destination country.

In situations of this type, there is wide scope for the activities of smugglers and people traffickers. At the benign end of the market, these gangs take on the task of managing – at a price - some of risks of precarious migration. At its most serious pole,  traffickers work to extinguish the capacity of the migrant to act independently in her own interest, reducing her to a condition of virtual slavery.

The international agencies have acknowledged the fact that grave human rights abuses occur during the course of smuggling and trafficking activities and the UN Office on Drugs and Crime (UNODC), which coordinates police activity across UN member states, has drafted important framework documents setting out the scope for action.

From the perspective of UNODC human rights concern arise with cases that can be readily identified as ‘trafficking’, and also the related area of ‘aggravated smuggling’.  Evidence for trafficking, at least in terms of prosecuting criminal gangs responsible for the crime, invariably rests on the identification of victims in a workplace where they are being held in conditions of forced labour.

But activists working in support of vulnerable migrants have long been concerned with the predicament of people whose presence has been detected outside a workplace, or at the point of crossing a border, where there is no immediate evidence that there intended fate is to be held in conditions of forced labour.  In these circumstances the standard response of police and border authorities is to treat the migrants as smuggled persons who have colluded with criminals in order to enter the country without official permission.  Smuggled migrants are not accorded any status as victims of crime and in many instances are prosecuted themselves for the offence of breaching immigration regulations.

This failure to accord any protection status to smuggled persons has concerned both the trafficking support networks, but also the more thoughtful elements in the national crime prevention agencies .  Many traffickers escape prosecution for the most heinous of their crimes because of the options they have to present the migrants whose movement they have managed as willing collaborators, rather than forced or coerced people.  The often strong bias on the part of national authorities, which aims to limit access to protection procedures, means that the  trafficking rings are often able to avoid escape the complete disruption intended by police action and then reconstitute themselves relatively quickly to continue their activities.

Consideration has been given to these issues by the UN agencies and a Smuggling Protocol  has been in existence since 2000 which sets out the circumstances in which a person detected initially during an act of smuggling should be regarded as a victim of trafficking.  Article 6 of the Protocol introduced the concept of ‘aggravated smuggling’, where there is evidence of violence being used against the smuggled person which has had the effect of endangering their lives or safety, or inhuman and degrading treatment which constitutes a violation of human rights. In cases of this type the smuggled person is entitled to be considered as a victim of trafficking and provided with the levels of support and protection which international laws requires to be extended to them.

On the face of it this approach seems to tick all the boxes you would expect to find for a sensible and workable measure.  In reality, the practices which prevail in virtually all states fall a long way short of the effect which the Protocol clearly intended.  In Europe, with the sole exception of Belgium, no state has made the concept of aggravated smuggling operational in its law.  Migrants who are apprehended in transit and exhibit all the symptoms of brutal treatment in the form of beatings, rape or trauma arising from the experience of confinement in sealed containers or unseaworthy boats, are more likely to be treated as being criminals themselves rather than victims of crime.

National politicians continue to cavil against immigration procedure that afford protection to people who are clearly victims of crime and human rights abuse on the grounds that this would put their politics at a disadvantage in the task of deterring irregular migration.  This reluctance has the effect of conceding more terrain to criminal gangs allowing them to shift a greater proportion of the risk involved in their enterprise to vulnerable migrants, which bears grim fruit in the massed evidence of the levels of violence which are routinely used to contain them within the systems of control required by the smuggling operation.

More action is needed by support networks to make the case to the authorities that a rights-based approach to migration management – which takes as fundamental the importance of a framework which affords protection to migrants which is consistent with their human, social and economic rights.  Though it seems hard for politicians and policy makers to accept the obvious fact, it is the case that an increase in the capacity of vulnerable migrants to escape the control of the criminals who are organising their movement would do more to challenge the viability of smuggling and trafficking businesses than any amount of police action on its own.