According to a recent article by the European Council on Refugees and Exiles (ECRE), the Essex lorry tragedy of the 23rd October, was only one of a series of incidents of people risking their life on Refrigerated Trucks to enter the UK. Only shortly after, 20 people were found in the back of refrigerated trucks in France and Belgium. Media present most of these incidents as human trafficking cases, where people involved are seen as victims in need of protection. Is it legally correct however to use the definition of human trafficking in all such cases, or is it preferable to draw a distinction between human trafficking and smuggling of migrants and refugees, in order to establish states’ obligations to offer each group the appropriate support?
After investigation, the UK police reported that the 39 people who died in a refrigerated lorry near Essex, were illegal migrants, the majority of whom originated from Vietnam’s poverty-stricken provinces of Nghe An and Ha Tinh. The container had been shipped to the Essex port of Purfleet from Zeebrugge in Belgium. The driver of the lorry was charged with 39 counts of manslaughter, conspiracy to traffic people, conspiracy to assist unlawful immigration and money laundering. On Wednesday 30th October 2019, after a call by the driver, the Belgian police discovered twelve people in the back of a refrigerated fruit and vegetable lorry on the motorway, near Oud-Turnhout. These people came from war-stricken Syria and Sudan and were luckily in good health conditions.
Where there is war, fear of persecution or poverty, people decide to flea their homes and abandon their families for a better future. In some instances these people are legally defined as victims of human trafficking, whereas in other cases, they become illegal migrants. Where the fear of persecution can be proved, people escaping war may claim asylum and enjoy protection as Refugees or people who must enjoy humanitarian protection, under the 1951 Refugee Convention. In order to be able to protect these people and offer assistance, it is important to know the international, regional and national legislation and available protection strategies.
In 2000 the UN adopted the Convention Against Transnational Organized Crime and its Protocols. The two relevant Protocols are the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air. The UN Protocol on Human Trafficking was followed by the adoption of the Council of Europe Convention on Action against Trafficking in Human Beings in 2005 and the EU Directive 2011/36/EU. Directive 2011/36/EU was transposed into Cyprus legislation by Law 60(I)/2014 as amended recently by Law 117(I)/2019.
Under article 3 of the Trafficking in Persons UN Protocol, Trafficking in persons is defined as: “the 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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;”
This definition could be divided in to three basic parts: the action “recruitment, transportation, transfer…”, the means “coercion, abduction, force”, and the purpose “exploitation”. It is crucial to record that consent shall be irrelevant where any of the means described in the definition were used. And when the victim is a child – under eighteen years old – then the means are not a necessary component for the formation of the offence. Therefore, for human trafficking to occur, it is important to demonstrate the action which may be seen in cases such as the Essex lorry tragedy, as well as the means, which were not absolutely clear, since the people being transported seem to have known and have willingly paid the smugglers to enter the UK illegally and finally the exploitation, as the purpose of the action.
The Smuggling Protocol on the other hand, symbolizes a great achievement of the struggle against the smuggling of migrants. It aims at protecting the rights of already smuggled migrants and also to prevent their subsequent exploitation and abuse. The Smuggling Protocol is concerned with the problem of organized criminal groups who illegally transfer migrants, often jeopardising the migrants’ or refugees’ lives acquiring highly profitable lump sums over promiscuous assurances. Smuggling exists due to the lack of regular migratory channels and the absence of control of labour conditions. Having little or minimal interest in protecting migrants from smuggling criminal groups, while adopting indecisive measures to address the gap between labour demands and restrictive admissions, consists according to the International Labour Organisation (ILO) one of the main push factors into the further stigmatization of labour migrants.
“Smuggling of migrants” is defined in Article 3(a), of the Protocol stating that it “shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the Person is not a national or a permanent resident.”
When comparing the crime of trafficking in persons and the crime of smuggling in migrants, we can see that there are many differences, although various forms of exploitation take place in both instances. Nevertheless, whereas smuggling of migrants is defined and understood as a crime against states, trafficking in persons is a crime against the individual, which presupposes exploitation. It is worth noting that smuggled migrants seem to be in a much worse position than victims of trafficking, according to the Protocols, since trafficked persons are referred to as victims whereas smuggled persons bear the burden of an illegal entry and they are ultimately blameful for their action of buying services from a smuggler. Hence, while smuggled people become clients of Smugglers, trafficked persons, which may enter legally, assumingly do not have the choice to buy services, since they are either abducted or deceived, or kidnapped, with the main difference that they will be exploited once they reach the third country. The difference with smuggled people is that they are also deceived sometimes as to the nature and often the destination of the service they are provided with, but they are exploited financially at the beginning or at the end of their journey and not once they begin living illegally in the destination country.
By presenting the main characteristics of the above two legal definitions, in theory it appears that smuggling and trafficking are different. In practice, however, there is no clear-cut distinction between trafficking and smuggling, which may in fact result to trafficking after all, if the illegal migrant is exploited once he or she enters a country. In these cases, if the victims are not identified correctly, they will be denied the protection of the UN Convention, the Trafficking Protocol and the relevant regional and national legislation. Therefore, even if a legal definition could be reached according to the facts of a case and the individual judgment of a competent authority, usually the Police being responsible of recognising victims of trafficking, according to the International Labour organisation (ILO), it would be advisable to consider trafficking and smuggling as a continuum.