Pontifical Council for the Pastoral Care of Migrants and Itinerant People

People on the Move - N° 86, September 2001

Smuggling and Trafficking in Humans
a Human Rights issue*

Susan F. MARTIN
Professor
Georgetown University, New York

Smuggling is one of the world's oldest professions. When nation states established borders and sought to regulate traffic across them, they created markets for the smuggling of humans as well as goods. Human smuggling involves illegal immigration and transnational criminal networks of various degrees of organization. Many smuggled aliens willingly participate. Others are duped or coerced. All are vulnerable to exploitation, abuse and violence, making smuggling -- and its most pernicious form, trafficking in humans for sexual and other exploitation -- a barrier to the protection of migrant workers and their families.
Alien smuggling is associated with many other social problems: sweatshops, involuntary servitude; buying and selling of human beings; fraudulent documents; corruption; transnational organized crime; and other crime. It is hard to detect and prosecute. Global communications allow smugglers to rapidly change routes, countries of transit and of destination, and schedules. The production of high quality counterfeit documents is easy.

Types of Smuggling Operations

Human smuggling operations take many different forms. Research suggests an emerging pattern of increasing professionalization. This pattern may vary by the type and location of the smuggling. To use trafficking into the United States from Mexico to illustrate the various patterns of smuggling, at the most informal levels, aliens are helped by family and friends to traverse the border. At a slightly more organized level, local agents may be used to link migrants to more formal smuggling operations. The local contacts, who are generally well known to the migrants, tell them who to contact at the border to help them gain entry into the United States.
At the border there are several types of services offered: assistance in crossing without inspection; safe houses; transportation to interior locations; links to employers. At ports of entry smugglers rent documents. Once through the inspection line, the document is retrieved and used again. For a higher fee the migrants keep the documents to verify eligibility for lawful employment. The use of the types of smuggling operations varies by gender and financial resources. Often, smugglers act like legitimate business people, guaranteeing their services and agreeing to receive final payment when the migrant reaches the final destination.
Other smuggling/trafficking operations are far less benign. Smugglers pack large numbers of migrants into small, unventilated spaces to cross borders or reach ports. Fearing apprehension by border authorities, smugglers have left migrants without water or protection from the hot sun. As smuggling fees increase, and migrants find it difficult to pay all costs at once, smugglers "sell" migrants to businesses who cover the fees in exchange for indentured labor. In one of its most troubling forms, trafficking can amount to virtual slavery, particularly for women and children forced into sexually exploitive occupations.

Best Practices for Combating Smuggling/Trafficking and Protecting Migrant Workers

There are three principal best practice approaches to combating migrant smuggling: prosecution, prevention and protection. These include law enforcement activities; educational programs; and efforts to protect the rights of those who have been smuggled.
Law Enforcement. Law enforcement strategies have been a mixture of disruption and deterrence. They include: making human smuggling an explicit crime, increasing legal penalties for alien smuggling, improving intelligence, breaking up smuggling rings, increasing arrests and prosecutions of smugglers, disrupting traditional routes and safe houses, and improving cooperation both with state and local law enforcement officials and foreign law enforcement officials. Additionally, attention has been focused on the employers of smuggled aliens; increased enforcement of labor laws; and regulating marriage, modeling and escort services to ensure they are not involved in trafficking for forced prostitution.
In the United States, all of these strategies have been pursued. Federal penalties for alien smuggling were increased. The 1994 Violent Crime Control and Law Enforcement Act provides that persons who knowingly bring illegal aliens into the U.S. are subject to possible imprisonment of 10 years (and/or fines) per alien. The maximum penalty was increased to 20 years per alien when bodily injury occurs or life is placed in jeopardy in connection with the smuggling offense. Should death result from the smuggling offense, life imprisonment or the death penalty may be imposed.
New federal prosecution guidelines increased smuggling prosecutions. The guidelines indicate prosecution when a defendant has endangered others, has a substantial prior criminal record, has smuggled 12 or more aliens at one time, is a smuggling leader or organizer, has smuggled an aggravated felon, or was on federal supervised release or probation for any federal offense at the time of arrest for alien smuggling. Endangerment to others is defined to include: transporting aliens in the trunk of a car by a defendant who was previously convicted of alien smuggling, concealing aliens in a specially built compartment, regardless of the defendant's prior criminal record, and guiding aliens on foot on a highway. In addition, the U.S. Attorney offices began prosecuting smugglers on felony illegal re-entry charges when they could not meet the heavier burden of proving the smuggling charge itself.
Significant levels of inter-agency and inter-country cooperation is needed to combat smuggling. Since 1990 an interagency Border Security Working Group focuses upon smuggling by sea and air. Also the Immigration and Naturalization Service (INS) has deployed staff in overseas locations (Operation Global Reach). The Justice Department also has a taskforce on human smuggling that aims to ensure coordination among the various federal law enforcement agencies involved in efforts to deter, apprehend and prosecute smuggling operations.
International cooperation is also essential since smuggling operations generally begin in source countries, involve transit through other countries and finally arrive in countries of destination. The U.S. government, for example, has operated with Mexican, Honduran, Thai and other officials to break up major smuggling rings.
Effective actions to combat smuggling further require training of government officials as well as various private actors. The U.S. government has worked with domestic and overseas airlines and other carriers of aliens to enlist their help in combating smuggling. It offered training for carrier personnel in identifying more accurately fraudulent documents. Carriers that participated and consistently applied the new procedures would not be subject to financial penalties for carrying unauthorized aliens and requirements to pay for the detention of aliens who appealed their deportation. A training program in Pakistan was credited with helping identify and breaking up a smuggling ring that was bringing aliens from South Asia into Kennedy airport where the migrants destroyed their documents and applied for asylum.
Education and Training. Education campaigns inform those who might use the services of a smuggler about the dangers entailed. For example, the U.S. has mounted an effort on the southern border, in conjunction with the Mexican government, aimed at educating Mexicans about the dangers of using smugglers. Education campaigns to combat trafficking in women have received particular attention and support from the U.S. and other governments. Women have been recruited to work in legitimate occupations and then find themselves trapped into forced prostitution, marriages, domestic work, sweatshops and other forms of exploitation. The US-EU information Campaign to Prevent Trafficking in Women in Ukraine and Poland warns women about what may happen if they respond to offers of employment in other countries. The U.S. State Department funded the International Organization for Migration to carry out the campaign in the Ukraine, and the European Commission funded La Strada, an NGO, to implement it in Poland.
Protecting Migrant Rights. The education campaigns are aimed at preventing the victimization of migrants, but once they do try to enter, governments grapple with defining what are the standards that govern the treatment accorded to them. Three issues serve as examples.
First are the rights of migrants attempting illegal entry to be protected from physical abuse at the hands of smugglers, other predators, and immigration officials. For example, the San Diego Police Department fielded an anti-immigrant victimization unit. It patrols the canyons, arrests bandits and ensures the safety of illegal aliens but does not enforce immigration laws. Mexico has created its own counterpart unit, Grupo Beta, which patrols the Tijuana side of the border. The result has been a new level of trans-border law-enforcement cooperation in protecting migrants. Mexico has put over a half dozen other Grupo Beta type units at other locations.
The U.S. and Mexico also have been working together to improve protection via such mechanisms as training for both Mexican and U.S. border officials on human rights issues; civilian review bodies to receive and hear complaints against officials; and locally-based consultative groups that include U.S. officials and Mexican consular officers to review operations and their impact on the rights of migrants.
The U.S. has an explicit policy of protecting even illegal aliens from exploitation at the worksite. When the Department of Labor Wage and Hour Division determines that employers have violated labor standards, efforts are made to recover lost wages even for illegal aliens. For example, the sweatshops that had employed the Thai nationals in slavelike conditions received court orders to pay more than $200,000 to the workers, on top of the $1.2 million confiscated by the government at the time of the raids.
Second are witness protection and other programs for those who testify against smugglers. Often, successful prosecution of traffickers requires the cooperation of those who have been smuggled into the country, but they may fear recriminations if they must return home. The U.S. has a temporary visa category (S visa) that permits witnesses in organized crime and national security cases to remain in the U.S. during the trial. In some cases, permanent residence can also be obtained for cooperative witnesses. The U.S. is now exploring ways to strengthen these provisions to grant legal status to migrants who testify against smuggling operations.
Third are programs for the safe and orderly return of smuggled aliens to their home countries. Smuggled aliens who are stranded or apprehended often do not have the resources to return home. Abused migrants may need special help to return home. Programs have been established to provide these services.
Protecting the rights of women and children who have been trafficked for sexual purposes is difficult. According to experts, measures to address trafficking should not further marginalize, stigmatize or isolate the women concerned, thus making them more vulnerable for violence and abuse. The experts recommended broad based support programs to include individual and peer counseling, hotlines for crisis intervention, legal advice and assistance, and shelter for victims who may be endangered by criminal groups

Conclusion

Smugglers have the advantage over governments at the moment because of the lack of an international migration regime in which governments cooperate to prohibit and prosecute smugglers of humans. Smugglers can easily exploit the gaps in the institutional structures of international cooperation as well as the fragmentation of domestic government law enforcement efforts. It is also to their advantage that except for the violence they may inflict their basic service of supplying cheap labor for receiving countries is widely tolerated even though illegal. Their advantage over migrants is the migrants' dependence, ignorance and lack of recourse when agreements are not fulfilled.
Combating smuggling/trafficking requires a systematic understanding of the nature and scope of the problem as well as best practices for controlling these operations. But human smuggling cannot be curbed in isolation. Public authorities must deal with a wide range of related matters including human rights, protection of victims and witnesses, labor and work site regulation, the factors in source countries that make migration so attractive, and the migration and asylum policies of receiving countries that permit smugglers to bypass regular procedures.

* Paper presented at the Regional Consultation of National Directors for the Pastoral Care of Migrants in America (Mexico City, 17-20 September 2000)
Gustavo Lopez Castro, "Coyotes and Alien Smuggling," Mexican Ministry of Foreign Affairs and U.S. Commission on Immigration Reform, Binational Study of Migration Between Mexico and the United States, Research Reports and Background Materials, vol 3, Mexico City and Washington, DC, 1998.