Border-security proponents who want to energize Washington’s international efforts to fight human smuggling should consider following the same strategy that launched the U.S. diplomatic campaign against human trafficking (also known as trafficking in persons or “TIP”). More than 20 years ago, a small group of activists mobilized key members of Congress to pass anti-TIP legislation directing the U.S. Department of State to take on what was then an obscure issue. The resulting anti-TIP law quickly gained momentum, marshalling American diplomats to take up the banner of leading an international campaign to push foreign governments to combat all forms of human trafficking. In this report, I will draw on my experience as a foreign service officer who worked for years in the State Department’s global anti-TIP campaign to argue how a similar diplomatic approach would be a powerful tool in the fight against human smuggling, also known as migrant smuggling or clandestine migration.
Fighting TIP Was Different from Combating Human Smuggling
When the State Department was first engaging foreign governments to explain human trafficking, many officials confused fighting TIP with combating clandestine migration. Even many in Congress who voted to pass the first anti-TIP law doubtless thought they were mainly legislating against human smuggling. Although human trafficking and migrant smuggling share many similarities, sometimes including international clandestine movement, they are not legally the same.
The sine qua non of human trafficking is commercially exploiting vulnerable people, usually through forced labor, domestic servitude, or coerced prostitution — all examples of “modern slavery” — making TIP at its core a human-rights, not a human-smuggling, issue. However, because vulnerable people in our era of rampant globalization are often migrants, clandestinely traveling across national borders, TIP and migrant smuggling become easily confused. One State fact sheet explained:
“Human trafficking” and “migrant smuggling” are two distinct crimes that often are erroneously conflated or referred to interchangeably. Clarifying the differences between the two is critical to the development and implementation of sound government policies. A key difference is that victims of trafficking are considered victims of a crime under international law; smuggled migrants are not — they pay smugglers to facilitate their movement.
Thus, migrants who are cheated by their smugglers or worse, those who drown at sea, expire from dehydration in deserts, or suffocate in closed-up vessels are technically not TIP victims.
For the past 20 years, policy-makers have consistently sidelined concerns about clandestine migration and its abuses, while shining all the policy attention on human trafficking victims. But the time is now right for Congress to look again at international migrant smuggling as a criminal activity that both undermines the rule of law and border security as well as exploits desperate migrants. The point is tragically illustrated by the recent deaths of 53 illegal migrants in Texas, who suffocated in a trailer truck and are certainly victims of heinous criminal activity, but do not technically qualify as human trafficking victims.
International Human Smuggling Largely Ignored by U.S. Diplomacy
Currently, since U.S. diplomacy concentrates on TIP exploitation, addressing the compelling stories of human smuggling cases, with their own tragedies of brutal abuse and death, does not fit into an existing American foreign-policy mission. Clandestine migration is a major international phenomenon that receives no proportional response from the State Department, which concentrates on, along with TIP, other human rights and global security issues such as religious freedom, anti-semitism, media freedom, labor protection, counter-narcotics, and counter-terrorism, but has no bureau or even office dedicated to fighting human smuggling.
Thus, the U.S. has no coordinated foreign policy that calls out countries for their lack of accountability about the fate of clandestine migrants exploited by smugglers operating on their national territory. The “Missing Migrants Project” of the International Organization for Migration (IOM) is an effort to upgrade global awareness of the large number of deaths and disappearances in human smuggling. IOM’s project claims to have documented almost 50,000 migrant deaths worldwide since 2014, all related to human smuggling and not human trafficking. No doubt, IOM hopes to attract more funding from national donors for its own migration-related activities, but this project also offers congressional planners solid, non-partisan data for writing new legislation to launch a new U.S. diplomatic initiative along the lines of TIP.
Anti-TIP Global Diplomacy Is a Model for an Anti-Human Smuggling Campaign
A new Congress will have a political opening for sweeping new legislation that tasks the State Department with combating migrant smuggling as a foreign-affairs priority. Much more than the TIP issue two decades ago, which was largely unknown among the American public, illegal migration simmers as a major U.S. domestic political issue, setting up a unique opportunity for a new congressional majority to act. Although the Biden administration will be hostile to such an initiative, and in fact its lawless immigration policies represent a major pull factor in bringing clandestine migrants worldwide to our borders, a new Congress should prepare legislation that could await a new presidency. Such legislation should not replace current anti-TIP law, which has a different priority, but be a new initiative that deals with a major unaddressed foreign-affairs challenge.
Congress was clever when it assigned the State Department the anti-TIP mandate, understanding the policy would be most effective as a high-profile diplomatic engagement that pushes foreign governments and helps mold international attitudes. In passing new legislation to combat international human smuggling, Congress should likewise base the initiative in the State Department and resist efforts to place it in DHS or any other U.S. law enforcement institutions. A strategy focused on human smuggling should be, like anti-TIP efforts, a global campaign that pushes countries and changes international priorities that tolerate and even facilitate clandestine migration.
TIP Legislation Gave Diplomatic Tools to State to Lead an International Campaign
A short review of the U.S. anti-TIP law is instructive. In 2000, Congress passed the first modern anti-TIP legislation that called for the State Department to rally countries against human trafficking. By commandeering the international bully pulpit, and with very little financial outlay, Congress framed the TIP issue in a way that significantly changed U.S. diplomatic priorities overnight. Important elements of the new law, known as the “Trafficking Victims Protection Act of 2000”, mandated that the State Department 1) push foreign governments to undertake robust national policies against smuggling and threaten poorly performing countries with sanctions, principally a cut-off of U.S. foreign assistance; 2) write an annual report to Congress on the TIP situation in each country (regardless of its direct impact on the U.S.); and 3) establish within State a special policy office dedicated to this mission.
Congressional planners should replicate this approach in drafting a new law against human smuggling. Such legislation should task State with exposing and condemning human smuggling on the national territory of each country, independent of any direct link to the United States. It should also make it a U.S. diplomatic priority to urge foreign countries to take national measures to combat human smuggling both in the name of fighting a heinous international criminal activity as well as protecting human rights.
Pushing Foreign Governments to Act
With the passage of the anti-TIP law in 2000, American embassies and consulates abroad began collecting information on human trafficking in each country and explaining to foreign governments the U.S. priority in fighting the phenomenon. Where possible, sensitive U.S. information was declassified to share with local authorities, who often were unconcerned or unaware of opaque TIP criminal activities on their national territory. Sometimes they or their families were even corruptly implicated.
Playing the human-rights card, the State Department also collaborated with civil society and multilateral organizations, which often had a significant presence in the target country, to join the campaign any way they could. Although slowly at first, the expression “trafficking in persons” or “TIP” began to enter the vocabulary of American foreign policy, becoming part of the agenda promoted by U.S. ambassadors and senior State officials when engaging other countries.
Today State routinely pushes TIP issues in nearly every country, lobbying senior officials at ministries of foreign relations, justice, police, and interior affairs, constantly calling on host governments to modernize their national laws, prosecute and jail traffickers, and take measures to protect trafficking victims. State calls on foreign countries to join the anti-TIP battle in international forums and conferences. It should be stressed again that American diplomacy is unconcerned if the TIP in any country has a nexus with the U.S., since Washington’s policy, above all, is about combating human trafficking as an international scourge.
This same kind of diplomatic engagement should be the goal of congressional planners in crafting legislation against human smuggling. Unlike TIP, the world already understands the concept of human smuggling, so initial educational diplomacy, which took State years, will not be required.
The Diplomatic Force of Congressionally Mandated Reports
In the anti-TIP law, State’s main tool for leveraging foreign governments is publishing the annual Trafficking in Persons Report, a public assessment to Congress on how each country performs within its national territory in identifying and combating human trafficking. As Congress intended, the report brutally shames poorly performing governments, shining a very public light on official corruption, human-rights abuses in prostitution and labor situations, and similar scandalous TIP activities that most countries never expected to be part of the U.S. diplomatic agenda. The internal bureaucratic fights within the State Department when compiling the TIP facts and writing final country reports are always contentious, but the power of the assessments, once published, is always considerable.
Congress should reprise the same strategy by mandating that the State Department write an annual “Human Smuggling Report” that should evaluate and rank each country, just as the TIP report does, including threatening non-performing foreign governments with sanctions, principally a cut-off of U.S. assistance. While it is true U.S. federal government authorities already write technical assessments on the human smuggling situation in many countries, their impact on U.S. foreign policy is negligible. For example, DHS writes a number of evaluations, as does State, whose Bureau of Consular Affairs produces useful, country-by-country fraud reports that touch on human smuggling, but all of these are used only internally. None of these assessments comes even close to replicating the diplomatic force of a congressionally mandated report — like the annual TIP report — which, if tasked by Congress, would overnight make combating migrant smuggling a major foreign-policy priority.
Admittedly, Congress has required State over the years to write numerous annual reports (the assessments on human rights and counter-narcotics are just two well-known examples), but few have had such a jarring impact on global U.S. diplomacy as the TIP report. This is in part because TIP was, before the U.S. initiative, a largely unaddressed criminal reality and also because there are strong anti-TIP advocacy groups, both within the United States and internationally, who are seized with the issue and very active politically. This same dynamic exists with the migrant smuggling issue.
Skeptics will point out that State Department careerists will resist another annual assessment, complaining they already write too many reports to Congress and lack the resources to take on another one. The resistance can be overcome. Only after Congress insisted did State end the bureaucratic foot-dragging and institutionalize the TIP report into Foggy Bottom’s foreign-affairs agenda. The same congressional constancy in pushing State is needed in fighting human smuggling, where typical bureaucratic inertia will try to turn the initiative into a technical law enforcement matter and not a sweeping international policy engagement.
Ranking Countries Gives Congressionally Mandated Reports a Stick
The anti-TIP law also mandates an evaluation system that requires State to judge and rank each country on one of three performance-level “tiers” (a fourth “watch-list” tier was added when the law was later tweaked). Countries ranked by State Department at Tier 1 are deemed to be meeting “minimum standards” against TIP (the law unilaterally laid out these minimum standards). Countries ranked at Tier 2 are determined to be making “significant efforts,” but not fully reaching the anti-TIP minimum standards. Countries ranked at Tier 3 are judged as not complying or making significant efforts to comply. Giving teeth to the law, Congress mandated that Tier 3 countries are subject to a cut-off of U.S. foreign assistance until they improve their anti-TIP efforts.
In enacting new anti-human smuggling legislation, Congress should copy this tier-ranking system. The TIP experience makes clear that the threat of ending U.S. foreign assistance pushed many recalcitrant foreign governments to undertake new efforts and dedicate more resources to fight human trafficking. The cut-off threat further motivated other policy actors on the ground in Tier 3 countries, such as private-sector companies, civil society actors, and multilateral institutions, to help push these same under-performing governments. This same stick will bring about similar urgency in the fight against clandestine migration.
Establish a Mission-Dedicated Office in State Department
Congressional architects of the TIP legislation realized, correctly, that consigning the fight against human trafficking into the long list of the State Department’s other priorities and putting leadership on the issue in the hands of career diplomats would not sufficiently elevate the mission. For this reason, Congress created within State the “Office to Monitor and Combat Trafficking in Persons” with sufficient resources to act globally and push the cause against bureaucratic inertia within the halls of Foggy Bottom.
In the same way, anti-human smuggling legislation should also establish a dedicated “Office to Combat Human Smuggling” in State, headed by a senior political appointee, ideally a subject-matter expert and policy leader widely connected with border-security advocates, who can effectively liaise with Congress and the international community to build alliances with other countries. The new Office to Combat Human Smuggling should probably be located — based on State’s current organizational chart — with the Under Secretary for Civilian Security, Democracy, and Human Rights. One thing is clear, it should not be put into the existing anti-TIP office, which is dominated by staff that will always give priority to fighting human trafficking, not smuggling.
The new anti-human smuggling legislation should also avoid the path that launched the Human Smuggling and Trafficking Center (HSTC), which Congress established without giving it either a clear mandate or resources. Some in Congress no doubt hoped that HSTC would become a policy coordination center for U.S. government agencies to advocate international anti-smuggling strategies, mirroring what the TIP office would do within the State Department. In fact, without a clear congressional mandate and adequate funding, nothing of the sort happened, as none of the agencies involved — most notably State, DHS, and DOJ — wanted to commit any resources to the enterprise. Eventually, through bureaucratic evolution, HSTC became a low-profile law enforcement “fusion center”, where it has done some admirable work in exchanging intelligence and studying migrant smuggling cases, but it has no real strategy voice within the U.S. government and certainly none at all in pushing foreign countries to change their policies, something that only State has the diplomatic firepower to do.
Win the Moral High Ground by Making Migrant Exploitation a Core Issue
Just as anti-TIP activists forged their political majority by highlighting victim stories, the tragedies that abound in clandestine migration should be a rallying call in passing new anti-human smuggling legislation. This kind of open discussion about smuggling victims will help to undermine the misplaced sentimentality and false romanticism that often dominate the narrative around clandestine migration. The above-mentioned IOM Missing Migrant Project provides solid ammunition for the debate.
This human-rights approach does not mean the new legislation should surrender any ground on important security aspects needed to fight clandestine migration as an international criminal scourge. New legislation should reinforce the call for vital security tools that push governments to implement strong border protection, enforce visa and immigration laws, cooperate in deportations, and prosecute smugglers. Congress should specifically resist creating new special visa categories for human smuggling victims, just as counternarcotics laws should humanely acknowledge the exploitation of drug abusers without accommodating the needs of their criminal habit. Above all, congressional planners must be careful not to let open-border advocates highjack any new anti-human smuggling law.
That said, smart new legislation will call out the abuse and deceit criminal smuggling networks weaponize against migrants, pushing desperate people, many of whom are unaccompanied minors, into risky and deadly travel scenarios. These are situations, as mentioned, that do not qualify, either under international agreements or the U.S. anti-TIP law, as human trafficking because they are not forms of modern slavery.
In short, because many open-border advocates, captured by their own ideological reasons, currently do not tread into the smuggling issue, the neglected battle for the human rights of smuggled migrants is wide open for border-security proponents to harness.
Marshal Existing Migrant Smuggling International Agreements and Legal Authorities
Skeptics may counter that the open-border lobbies have already won the international debate and firmly established global standards that openly tolerate and even facilitate human smuggling. They point to multilateral agreements such as the United Nations Global Compacts on Migration and Refugees, passed in 2018, as open-border crowning achievements.
While it is true that most multilateral organizations, like the UN, will drag their feet in mobilizing against human smuggling, there are still significant international tools for U.S. diplomacy and our international border-security allies to brandish in fighting back. Indeed, breathing new life into existing international agreements that combat migrant smuggling is probably a better strategy than investing time and resources trying to undo all the open-border legal instruments that multilateral groups have already put into place. We need to fight our battles on the available legal authorities that support our cause.
First and foremost is the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention Against Transnational Organized Crime. Known as one of the “Palermo Protocols” and currently ratified by 149 governments (the United States in 2005), this anti-migrant smuggling international instrument gives a grand opening to new U.S. diplomacy. In fact, in conjunction with the smuggling protocol, the international community also popularized the first modern anti-TIP international legal document, known as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. Anti-TIP activists raised up the human trafficking protocol to give legitimacy and a clarion call to vigorous human trafficking laws, both in the United States and other countries, while the anti-smuggling protocol fell into the hands of police and border-guard officials who had neither the expertise nor political leadership to launch a similar campaign.
Indeed, while it is not overall a helpful document, the UN Global Compact on Migration can even be harnessed as it asserts (Objective 9, Paragraph 25): “We commit to intensify joint efforts to prevent and counter smuggling of migrants by strengthening capacities and international cooperation to prevent, investigate, prosecute and penalize the smuggling of migrants in order to end the impunity of smuggling networks.” That’s all the language we need.
Let’s hope a new Congress in 2023 will fight human smuggling as the global scourge it is.