Do Not Confuse Smuggling with Trafficking

By Nayla Rush on August 1, 2017

The United Nations designated Sunday, July 30 as the "World Day against Trafficking in Persons" following a 2013 resolution to "raise awareness of the situation of victims of human trafficking and for the promotion and protection of their rights."

A few days before, the subject of human trafficking made headlines following the tragic discovery of the bodies of illegal aliens inside a tractor-trailer in the parking lot of a San Antonio Walmart. Public condemnations were numerous, to cite just a few:

Except it doesn't appear to have been trafficking.

Human trafficking certainly deserves public attention but, to quote Norwegian migration researcher Jørgen Carling, many if not most trafficking stories in the news have "little to do with trafficking." Most "trafficking" stories are in fact "smuggling" ones.

What's the difference between trafficking and smuggling?

Human trafficking is the transportation of persons by means of coercion (whether through force, deception, or abuse of power) into exploitative and slavery-like conditions. There are three basic components to human trafficking, according to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons. The first refers to the action of recruiting, transporting, or harboring people. The second defines the means by which this is carried out: threat or use of force, coercion, or deception. Last, behind every trafficking act lies the purpose of exploitation.

Human trafficking is the intersection of these three components (action, means, and motivation); should one link of the chain go missing, trafficking does not take place.

One condition is fundamental here: Trafficking refers to the recruitment and transport of people with the intent to subject them to exploitation. Exploitation alone does not constitute a trafficking crime. It is the combination of transport (by force or deception) and a coerced end practice (usually forced labor and sexual exploitation) that do. Simply put, all who are trafficked are exploited, but not all who are exploited are trafficked.

Smuggling, on the other hand, as defined by the UN Protocol Against The Smuggling of Migrants By Land, Sea and Air as "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." The migrant is totally aware and willing to move to a particular destination. The smuggling action ends with the migrants' arrival at the destination, whereas for trafficked migrants, that's when the exploitation begins. With smuggling, the focus is on illegal movements across borders, while for trafficking the emphasis is on coercion and exploitation. Smuggling ends with arrival to a specific destination. Trafficking involves ongoing exploitation.

"Initial consent" is not incompatible with trafficking. A person can willingly agree to migrate (and even pay a smuggler) to go work for an employer and still be the victim of trafficking. This consent is rendered meaningless as soon as the person revokes it and is forced in one way or another to carry on with the job. The fact, therefore, that one paid to be smuggled into a country does not exempt him/her from being deceived into trafficking. Again, trafficking is not about how one crossed the border, it is about what happens next and the connection between these two; a trafficked person is moved in order to be exploited.

Were those found on a parking lot in San Antonio victims of trafficking? Were they smuggled into the U.S. in order to be forced into labor or sexual exploitation? We cannot know for sure, as their journey was cut short (for some, sadly, permanently). What is most likely, however, is that this was a case of smuggling that ended badly. The fact that smuggled individuals fall under the hands of unscrupulous smugglers does not render them victims of trafficking.

This also seems to be the opinion of Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement, who released a statement following the San Antonio truck discovery:

By any standard, the horrific crime uncovered last night ranks as a stark reminder of why human smuggling networks must be pursued, caught and punished. U.S. Immigration and Customs Enforcement's Homeland Security Investigations works year-round to identify, dismantle, and disrupt the transnational criminal networks that smuggle people into and throughout the United States. These networks have repeatedly shown a reckless disregard for those they smuggle, as today’s case demonstrates.

It is important not to confuse smuggling with trafficking because the response of authorities (and the help they provide victims) is based on their assessment of a specific criminal activity.

Victims of human trafficking in the United States are eligible for a T visa, which gives them access to federal refugee benefits, work authorization, sponsorship of family members, adjustment to lawful permanent residence (green cards) three years after approval, etc. Victims of "qualifying criminal activity" (such as abduction, domestic violence, rape, stalking, trafficking etc.) of crimes that occurred in the United States who provide help to law enforcement are eligible for a U visa. U visas also give access to green cards, family reunion, and other benefits.

Illegal aliens who survived the San Antonio ordeal are "seeking to trade testimony for visas" (whether U or T the story doesn't say).

Unless proven otherwise, U.S. law enforcement should be careful about delivering such visas (and benefits) to the survivors of what looks like a mere smuggling case gone wrong. Humanitarian parole should give sufficient incentive for collaboration with authorities.

Confusion between trafficking and smuggling is not uncommon. This was manifest when the flows of Unaccompanied Alien Children (UACs) from Central America crossing the border from Mexico into the United States illegally reached peak levels during the summer of 2014.

The initial response of the Obama administration to the surge in 2014 was to present these minors as victims of human trafficking. Are UACs trafficked?

As noted earlier, trafficking is about the intersection of three components: action, means, and motivation. What about action in this case? Most UACs are being smuggled across borders (though some make the journey alone).

With what means? There is nothing to suggest that they were either forced, coerced, or deceived into crossing the border. In fact, testimonies suggest they and their family members were well aware of the multiple opportunities available to them in the U.S. (including a welcoming immigration policy put in place by the Obama administration).

Why? What's the motivation underlying this move? Are these children transported to be exploited once in the U.S; will they be forced into servitude, menial labor, or sold as sexual objects? That does not appear to be the case; in fact, quite the opposite. Most join family members already in the U.S., and are cared for and allowed to access numerous benefits such as education, health care, etc.

In a report published in the summer of 2014, the Migration Policy Institute explored the reasons behind the "Dramatic Surge in the Arrival of Unaccompanied Children" into the U.S. While recognizing various push and pull factors — such as stumbling economies, rising crime and gang activity in Central American countries, as well as a growing perceptions among these populations that the U.S. government's treatment of UACs has softened under the Obama administration — what seems to be the main driving factor for these children is family unification:

Family separation has long been a strong motivation for unaccompanied minors to migrate. Immigration to the United States from Central America and Mexico in high numbers over the last decade has led adults, now settled in the United States, to send for the children they left behind. UNHCR researchers found that 81 percent of the children they interviewed cited joining a family member or pursuing better opportunities as a reason for migrating to the United States.

For UACs, it's all about family reunion and the promise of a better life. The motivation of smugglers is obviously money.

It is a fact, then, that the vast majority of UACs who are illegally entering the United States are smuggled and not trafficked, something even Obama's DHS Secretary, Jeh Johnson, admitted: "It's our observation and our experience that almost all of them [UACs} are smuggled." (Cases such as those forced to work on egg farms in Ohio remain the exception.)

In the wake of 2017 World Trafficking Day, let us be careful about the words we choose, the benefits we give, and the policies we implement. Because, as Professor Carling reminds us, "[w]hen any unauthorized transportation of people across borders is labelled 'trafficking' we lose the ability to pinpoint and prevent truly exploitative crimes." And so, "[b]y using 'trafficking' only when it is warranted, we can support the fight against exploitation and take a stance against opportunistic uses of a powerful word."

For an effective fight against trafficking and proper assistance for its victims, let us always use the right word.