Leiden Law Blog

Human Trafficking and Human Smuggling. What’s the Difference?

Human Trafficking and Human Smuggling. What’s the Difference?

Human rights have increasingly captured the attention of governments and policy-makers in this era of globalisation. International organisations such as Human Rights Watch , INTERPOL, and  EUROPOL, have been put in place to protect and defend individuals by safeguarding their rights. Treaties and conventions all over the world , such as the Universal Declaration of Human Rights and the European Convention on Human Rights, have insured the protection of these rights under criminal law.

In the last three decades, due to the phenomenon of mobility, crimes such as human trafficking and human smuggling have been on the rise. Some people confuse these two crimes or even think of them as the same illegal behaviour. However these two crimes are very different.

What’s the difference and how can they overlap?

Human trafficking is the phenomenon of controlling human beings for the purpose of exploiting them, as defined by the 2000 UN Protocol. Victims of such activities are forced to work in domains where their liberties and freedoms are at stake. They are victims of sexual exploitation, forced labour, removal of organs and servitude. Therefore, trafficking in humans does not only occur as a cross-border crime, it can also occur within the territory of the same country. Furthermore, such illegal activities are carried out by criminal networks that exchange these individuals unlawfully with other criminal organisations. Finally, trafficking in people can occur even though they entered the country legally.

Human smuggling on the other hand, is the phenomenon of illegally entering a country. This crime is a cross-border crime and cannot occur within the territory of one country. The primary victim of this crime is the State, because its immigration laws have been violated, and therefore its sovereignty has been violated too. The secondary victims are the human beings. In fact, these individuals who decide to cross borders and to move to another country made their own decision to do so, and were not forced to, unlike the crime of human trafficking. Moreover, contrary to victims of human trafficking, victims of human smuggling are not controlled by the network that helped them cross borders once they enter their destination country.

Nonetheless, these two crimes can overlap: victims of human smuggling can become victims of human trafficking. In fact, those who have been smuggled into a country cannot report themselves to the authorities and ask to obtain the same rights as legal residents because of their undocumented status. Therefore, they are subjected to low-quality employment, working long hours, in bad conditions  and earning very little. It is only then that exploitation occurs, and they become victims of human trafficking.

Accordingly, one can say that these two crimes might have victims with similar characteristics such as being helpless or foolish adventurers. Human trafficking victims, however, are forced or coerced to do so, while victims of human smuggling choose to do so. The crime of trafficking in humans is a crime that primarily violates human rights and freedoms, whereas the crime of smuggling individuals is primarily a crime against the state, violating its jurisdiction by breaking its immigration laws.

To conclude, it can be said that the field of criminal law has been widely extended to cover most areas of the law. A new concept saw the light in 2006, that of “crimmigration”. This is the merger of criminal law with immigration law, in order to respond to new emerging crimes. One aspect of this concept is the criminalisation of immigration. Lately, human smuggling has increasingly become  a human rights issue with the problem of refugees, calling for the intervention of criminal law in this domain, whereas human trafficking is known nowadays as “modern slavery” and has always been protected by the criminal law. The question is, how far can the scope of criminal law be stretched in the light of new developments?

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