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Distr. GENERAL A/HRC/7/12 25 February 2008 Original: ENGLISH |
HUMAN RIGHTS COUNCIL
Seventh Session
Agenda Item 3
51. The Special Rapporteur observes the
continued abuse of irregular migrants who are involved, whether deliberately or
inadvertently, in smuggling and trafficking operations. Over time the process
of human trade has become more complex, whereby smugglers and traffickers may
use a combination of deceptive, clandestine, or even legal modes of migration,
switching strategies at different stages of the journey, and involving both legitimate
and illicit actors at the governmental and non‑governmental levels (inter
alia, border officials, intermediaries, recruitment agencies, police officers,
tourist agents, transport entrepreneurs and airline employees).[1][1] The facilitation of cross‑border movements
has increased to such an extent that the networks rely on many players who may
not be actively and knowingly participating in smuggling or trafficking
activities as such. There is a concern that, in the process of preventing the
proliferation of such networks and intercepting those involved, irregular
migrants may not receive adequate protection.
52. Furthermore, due to such complexities, in
certain cases there seems to be a largely superficial distinction between the
two practices, as well as confusion about their definition and scope. In
principle, trafficking is generally considered a crime against human beings,
and routinely involves coercion, deception, abduction, debt bondage, abuse of
power and financial gain for those who facilitate and profit from the trade,
and general exploitation of the victims of trafficking. It can imply threats to
personal safety, sexual and reproductive health, and can entail abuse and degrading
treatment during the process. By contrast, smuggling of migrants has been seen
essentially as a crime against States, whereby the procurement of the illegal
entry into a country of a non‑citizen is seen as a violation of States’
sovereign power to refuse entry and expel aliens.[2][2]
53. In principle, smuggling is not, at least
initially, a coercive practice because the potential migrant enters into a
contract with the smuggler. However, smuggling practices have become much more
comprehensive, as anti‑migration policies have become more restrictive,
opening up migrants to infinite abuses, inter alia, sexual exploitation,
physical assault, debt servitude, and abandonment. As such, smuggled migrants
are often susceptible to violations which they may not have foreseen before
agreeing to be smuggled. Moreover, in certain cases, smuggled migrants can also
become victims of trafficking, further blurring the distinction and causing a
false hierarchy of victimization.[3][3]
54. In this regard, the notion of consent to
being smuggled becomes ever‑more complex. Once an irregular migrant is
intercepted, it is up to the State in question to determine the migrant’s level
of complicity in the mode of irregular entry, leaving much latitude for
assignment of culpability or, by contrast, victimization, which impacts the
level of protection that migrants may receive. That is, an irregular migrant
that is thought to have consented to being smuggled may be perceived as
deserving less protection than a victim of trafficking who may be perceived to
have been unknowingly exploited. These distinctions are further
complicated by discriminatory sentiments pertaining to country of origin
or assumptions based on race and gender.[4][4]
55. 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, both supplementing the
United Nations Convention against Transnational Crime, contain a saving clause
providing for the continued application of human rights, humanitarian law, and,
where
applicable, refugee law.[5][5] But, while these branches of law continue to
apply to irregular migrants, in practice such migrants continue to be
vulnerable to exploitation and abuse due to their lack of legal status in a
country.[6][6]
56. The purposes of the Trafficking Protocol
are to prevent and combat trafficking in persons, especially women and
children, to protect and assist the victims of trafficking, and to promote
cooperation among States in order to meet these objectives.[7][7] The Trafficking Protocol provides that consent to
exploitation is irrelevant where any of the “means” set out in the definition
are used and calls upon States to establish the involvement of individuals in
the process of trafficking as a criminal offence and mandates a number of
measures to be taken to prevent and combat trafficking, unilaterally and in
cooperation with other States.[8][8] Such measures include information exchange and
training of relevant officials, strengthening border controls, and the security
of travel or identity documents.
57. Despite these protections, victims of
trafficking, often misinformed, commit administrative infractions, such as
irregular entry, use of false documents and other violations of immigration
laws and regulations, which make them liable to detention and contribute to
their criminalization. Furthermore, the law of some States punishes as criminal
offences irregular entry, entry without valid documents or engaging in
prostitution, including forced prostitution. Victims of trafficking are thus
often detained and deported without regard for their specific needs for
protection and without consideration for the risks they may be exposed to
if returned to their country of origin.[9][9]
58. The purposes of the Smuggling Protocol
are to prevent and combat the smuggling of migrants, and promote cooperation
among States parties to that end, while protecting the rights of migrants. In
particular, it calls for special protection of migrants in the context of the
right to life, the right not to be subject to torture or other cruel, inhumane
and degrading treatment, as well as draws attention to the special needs of
women and children. However, it is clear that the protection afforded to
smuggled migrants is considerably less than that provided for victims of
trafficking under the Trafficking Protocol, specifically because smuggled
migrants are considered to have consented to the practice. The Smuggling
Protocol’s emphasis is on strengthening border controls and, while there is a
prohibition on an individual from being
prosecuted simply for being smuggled ‑ it specifies that migrants shall
not become liable to criminal prosecution for being the “object” of smuggling ‑
it is significant that irregular entry remains a criminal offence in many
countries.[10][10]
59. In contrast with the definition of
trafficking, although smuggling can be abusive and dangerous, its definition
does not necessarily denote the occurrence of exploitation or a violation of human rights. In practice, however,
the distinction between the two can be hard to draw and, as explained above,
migrants who initially consent to being smuggled may end up in exploitative
situations.[11][11] Due to the ambiguities in such practices, and not
least owing to the proliferation of networks as a response to ever more
restrictive anti‑immigration policies, it is particularly important that
States receive irregular migrants perceived to be involved in trafficking and
smuggling practices on an individual basis, investigating to the fullest extent
their potential complicity, and providing for them guarantees of due process.
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[2][2] Ibid., p. 4.
[3][3] Ibid., p. 5.
[4][4] Women involved in sex work or prostitution,
whether consensually or not, may suffer further stigmatization. See Kamala
Kempadoo, “Sex work migration and human trafficking: problems and
possibilities”, in Intra‑Caribbean Migration and the Conflict Nexus,
167‑185.
[5][5] Trafficking Protocol, article 14, and
Smuggling Protocol, article 19.
[6][6] See the discussion in Cholewinski, et al.,
pp. 24‑28.
[7][7] Trafficking Protocol, article 2.
[8][8] Ibid., articles 3 (b) and 5.
[9][9] See report of the Special Rapporteur on the
human rights of migrants, Gabriela Rodríguez Pizarro, E/CN.4/2003/85.
[10][10] Smuggling Protocol, article 5, and see Lee,
p. 4.
[11][11] Cholewinski, et al., p. 27.