Human Security and Migration in Europe’s Southern Borders

  Trafficking, Smuggling and Human Rights

Smuggling and trafficking of people is a complex and multi-faceted matrix that involves countries of origin, transit
and destination, interchanging their international relations and security concerns, as well as their (informal)
economies. It has become a hot political topic in the international agenda over the last years. Given the
transnational character of this phenomenon and their mingling with transnational organised crime, both smuggling
and trafficking might represent an attack on national sovereignty.

The point of departure of migrants’ smuggling or trafficking, as well as for irregular or illegal migration, is usually a
set of internal drivers (conditions at home) that leads migrants to look for this kind of ‘service providers’. Thus,
push factors prevail and motivate people to use illicit or even legitimate channels to leave their country.

The phenomenon of smuggling and trafficking has increased over the last decades. For some, on the one side, it
was due to the decreasing possibilities for regular migration, given the existence of stricter controls and more
stringent regulations. Others, on the other hand, see it the other way around that is due to the presence of weaker
controls, namely regarding weak anti-trafficking legislation and its enforcement.

Either way, the market for irregular migration services has emerged and established itself, comprising mechanisms
and networks still reasonably unfamiliar to both researchers and policy makers. And migrants are more vulnerable
and exposed than ever, to the dishonest and corrupt services provided by these networks.

Until the beginning of the twenty-first century, there was no international consensus on the definition of both
concepts. The adoption of the UN Protocols on Human Trafficking and Human Smuggling in 2000 allowed the
incorporation of a mutual understanding of those concepts into international and national policies and laws. This
step was seen as an enhancement in global cooperation and collaboration to address and combat these
phenomena at an international level.

Trafficking and smuggling might be conceived as part of a

continuum, which goes from deception to complete coercion,
where there is considerable variation between both extremes.
Therefore, when addressing those issues, it is usually problematic
to establish whether elements of deception and/or coercion were
present and at what level and degree.

The ‘Protocol against the Smuggling of Migrants by Land, Sea and

Air’ (UN General Assembly, 2000a) states that ‘“[s]smuggling of
migrants” 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’. As for the concept of
trafficking, the ‘UN Protocol to Prevent, Suppress and Punish Trafficking in Persons’ (UN General Assembly, 2000b)
defines ‘trafficking in persons’ in its Article 3 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 payment 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.
Thus, trafficking involves coercion and different forms of exploitation, while smuggling comprises deception and
might lead, in some cases, also to coercion. Although the primary purpose of smuggling might be merely to assist
in the illegal crossing of a border or to facilitate throughout the journey, it does not mean that human rights
abuses do not take place at times (such as deprivation from water or food, bad transportation or accommodation
conditions, or even harassment or rape). Furthermore, the boundaries between smuggling and trafficking become
even more unclear when migrants who resort to the services of smugglers become victims of trafficking. Hence,
something that started voluntarily, with mutual consent, might be invalidated through deception or coercion.
Thus, as stressed before, within trafficking and smuggling the boundaries between forced and voluntary
movements are confusing, as well as between legality and illegality.

Regarding human rights abuse, both traffickers and smugglers are known to use (excessive) violence against their
victims to exert power and control. This goes from the seizing of documentation, and confinement to small spaces,
to abuses, assaults or violations.

There are few organised and trustworthy data on the scale of these realities, which translates into a limited
understanding of the victims’ profiles and of the networks’ modus operandi. Furthermore, until recently most
studies were based on unrepresentative samples, such as interviews to stakeholders or a certain amount of
victims, and it is dangerous to generalise from small examples, due to their own limitations.

Lack of knowledge and a global understanding of the phenomenon leads to not well-informed policies to address
human smuggling and trafficking. In this sense, both policies and the political discourse are not evidence-based.
Instead, they are established around the construction of victims’ mythologies, such as a tight connection between
sex trafficking, (voluntary) prostitution and pimping. It is quite challenging to measure the number of smuggled
and trafficked people worldwide. From the data available, it is clear that children and women are the most
vulnerable groups and they comprise the most significant number of victims of trafficking.

Trafficking and smuggling networks usually have a flexible structure, and they might have a cellular and
hierarchical organisation or consist of several loosely interconnected systems. The degree of organisation changes
dramatically; it can be simplistic, one single-provider service, or have a ‘multinational’ structure. Furthermore, it
may also involve interaction with other criminal networks or even legitimate transportation companies. In this
sense, it comprises multiple players operating through different countries. All things considered, the recent growth
in smuggling and trafficking with the migration crisis might also be seen as part of the failure to manage migration
and address its causes.

Accountability for Human Rights Abuses and Violations

Human rights are universal and binding on all States and their agents. Those fundamental rights arise from the
intrinsic dignity of the human person, translated into a set of rights and freedoms enshrined in international
treaties.

Human rights inform the normative standards by which all societies should abide. The notion of ‘standard’ is often
related to human rights, as they define the basis, a minimum level, to be attained. In this sense, the term ‘human
rights standards’ refers to ‘the level or quality of life that must be met under these laws. That is, human rights
standards should be perceived as a minimum level with which States should comply.

Accountability is a pillar of the human rights framework. From a human rights perspective, accountability ‘refers to
the relationship of Government policymakers and other duty bearers to the rights holders affected by their
decisions and actions.’ It is grounded on the premise that accountability improves policy-making through both a
corrective and preventive function. On the one hand, the corrective function allows to address criticism and
sanction the actions of the individuals and institutions responsible. On the other hand, accountability helps to
regulate policy or service deliveries, in order to improve or adjust them beforehand.
Within a human rights framework, States are first and foremost responsible and answerable—accountable—for
respecting, protecting and guaranteeing the rights and freedoms of those individuals under their jurisdiction.
Therefore, human rights’ abuses and violations might be the result of a varied sort of factors, comprising the
absence of political will, deficient national policy consistency or lack of adequate services and resources for quality
service.

From a human rights perspective, accountability revolves around three dimensions: responsibility, answerability
and enforcement. Firstly, international human rights provide a framework to outline the essential responsibilities
of agents and officers, by defining the obligations that inform their conduct. Secondly, human rights principles
clarify the freedoms and prerogatives that public agents must guarantee in order to be answerable to citizens and
all those affected by their decisions and actions. That is the monitoring of the actions of both individuals and public
officials. Lastly, human rights standards and instruments help to enforce accountability and addresses demands of
rectification.

The human rights rationale offers a solid matrix for the enforcement of accountability, as well as potentially
adequate processes for accomplishing it. The rights and freedoms enshrined in international treaties provide the
mechanisms to guarantee the protection and enforcement of human rights. Therefore, human rights law presents
the pathway of redress for victims of abuses and violations of their fundamental rights. Thus, accountability for
human rights in migration and border management is often connected with the risks that arise from the nature of
surveillance and security activities, which jeopardise human rights, as well as to the sensitive nature of national
security organisations and agencies.

Therefore, the process of accountability for human rights in this field aims to ensure that the implementation of
migration and border policies and strategies safeguard fundamental rights and human security.