French Criminal and Administrative Law Concerning Smuggling of Migrants and Trafficking in Human Beings: Punishing Trafficked People for Their Protection?

"Immigration and Criminal Law in the European Union: the Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings" published on 01 Jan 2006 by Brill | Nijhoff.

The Tragedy and Horror of Human Trafficking of Children and Youth

A Message from the EditorIntroduction to the Special Issue on Human Trafficking Michael R. Hall, Sabella Abidde, and José de Arimatéia da Cruz In November 2000, the United Nations adopted the "Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime." It stated, "'Trafficking in persons' shall mean the recruitment, transportation, transfer, harboring, 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 payments 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 labor or services, slavery or practices similar to slavery, servitude or the removal of organs."1 The 7th INTERPOL Global Conference on Human Trafficking and Migrant Smuggling was held in Buenos Aires, Argentina, in September 2019—three months before the 37th Annual Association of Global South Studies (AGSS) Conference held in Argentina's capital in December 2019. The INTERPOL conference attracted 750 participants from ninety-seven countries who focused on disrupting the "business model" of criminal enterprises behind human trafficking and migrant smuggling. In her opening remarks at the INTERPOL conference, Patricia Bullrich, Argentina's Minister of Security, described human trafficking and migrant smuggling as "the strong over the weak—those who exploit the vulnerability for their own profit." According to Bullrich, "It is important that we understand the essence of the crime, [End Page ix] not only to fight the offenders, but also to develop our ability to return freedom and peace of mind to all those who have suffered as victims."2 While attending the AGSS conference, Professor of Political Science Sabella Abidde at Alabama State University, Professor of Political Science José de Arimatéia da Cruz at Georgia Southern University, and Professor of History Michael R. Hall at Georgia Southern University—encouraged and influenced by the success and popularity of the recent INTERPOL conference—initiated a project that would examine the issue of human trafficking in Africa, Latin America, and the Caribbean. Initially, the plan was to host a series of panels at the 38th annual AGSS conference to be held in Halifax, Nova Scotia, Canada, in October 2020. Due to travel restrictions related to the COVID-19 pandemic, however, the conference was canceled. As a result, we approached Ryan Alexander, the editor of the Journal of Global South Studies (JGSS), with a plan for an issue of the journal dedicated to the theme of human trafficking in Africa, Latin America, and the Caribbean. The fruition of this endeavor are the six articles by nine scholars from multiple disciplines included in this issue of the journal. In "Theorizing Human Trafficking and Unfree Labor," Julia Harnoncourt from the University of Luxembourg and Miguel Paredes from the University of Vienna examine human trafficking in the context of labor exploitation. The authors explain that unfree labor transpires when the workers cannot sell their labor freely. Significantly, the unfree labor condition involves a situation in which the laborer cannot end their labor relation. After placing their research in historical perspective, the authors examine the Palermo Protocol and the application of laws against human trafficking in two case studies: Bolivia and Brazil. In "Paradoxes and Anomalies in Caribbean Anti-Trafficking Law and Practice," Jason Haynes from the University of the Birmingham assesses existing state practice on human trafficking in the Caribbean. Haynes' study is based on empirical data collected from interviews with 50 government officials and nongovernmental organization representatives in twelve Caribbean nations. In "Comparative Analysis of Human Trafficking in Caribbean and African Islands from the Annual Trafficking in Persons Report," Kathleen M. Vogel from Arizona State University examines current trends in human trafficking in African and Caribbean islands. Especially relevant is the author's discussion of the impact of the COVID-19 pandemic on human trafficking. In "Sun, Sand, Sex, and Safari: The Interplay of Sex Tourism and Global Inequalities [End Page...

Over the years hundred of African men, women and children either willingly or are forcefully being subjected into situations of labour and sexual exploitation both on the continent or abroad. For many African countries, the problem has just recently been acknowledged. Internationally, trafficking in persons and its twin brother human smuggling have been identified as serious threat to humanity by United Nations, pressure groups and various governments. This article therefore, focuses on the meaning of trafficking in persons and human smuggling, their differences, the inter-relationships, the impact of both trafficking in persons and human smuggling on the continent of Africa, and strategies for combating human smuggling and trafficking in persons generally.International Journal of Policy and Development Studies Vol. 3 2007: pp. 54-59

The paper discusses United Nations (UN) Security Council resolution 2240 (2015). The Resolution was adopted under Chapter VII of the UN Charter and authorises for a certain period of time UN member states to inspect and seize vessels on the high seas off the coast of Libya when they reasonably suspect that these are being used for migrant smuggling or human trafficking. The paper sees in resolution 2240 an example of how the UN Security Council may empower states to take action against transnational social phenomena that raise serious concerns from the perspective of human rights – regarding especially the right to life. The idea that transpires from this resolution is that transnational phenomena, such as smuggling of migrants and human trafficking, require (coordinated, as the study argues) action by all involved states and, more generally, international actors (although the focus in the study is on states). Because of their transnational nature, such situations involve a plurality of duty bearers, each one of which is partially connected to the situation and has an obligation to be pro-actively engaged – to the extent that its individual connection with the situation at issue justifies and requires it. This leads to a situation of multiple duty bearers who exercise parallel and, possibly, also overlapping jurisdiction as a means to fulfill their duties under international law – especially regarding the so-called positive dimension of human rights, i.e. the duty to protect. This implies that concurrent state responsibility (in the sense of liability) may arise, if more than one of these duty bearers break their duties. With its resolution, the UNSC contributes to the idea of shared responsibility by multiple states to react against transnational social phenomena that raise concerns from the perspective of human rights and human security. Because human trafficking and smuggling raise issues of human security, the idea of multiple duty bearers and concurrent state responsibility advanced in the study can be associated with the UN human security policy framework. The paper argues that this framework ought to be attuned to fully meet the particular needs, nature and features of transnational phenomena, such as trafficking and smuggling, that threaten the security and well-being of people. For human security to be successful in its goals, it needs to be adjusted to the transnational nature of these phenomena. What is required when a situation necessitating protection exceeds or transcends the borders of a state, is establishing frameworks of cooperation and coordination between the various involved parties. This is an essential precondition for human security to deliver effective results and prosper in the era of inter-connection and globalisation.

Although 'trafficking in human beings' and 'human smuggling' are divergent crimes that refer to different articles in the Dutch Criminal Code, they both became strongly attached to 'world' of organized crime. Consequently, the government speaks of victims in case of people being trafficked and increasingly of offenders for those being smuggled. In this chapter, several global developments and incidents within the Netherlands have been described that have contributed to a climate in which human smuggling has evolved from a non-problematic fact or activity to a serious criminal offence that deregulates Dutch immigration and integration policies and ultimately threatens national security. This chapter focuses on the flows of people, transnational organized crime and international terrorism. As in most other western countries, migration policies in Netherlands are increasingly characterized in terms of migration control. Simultaneously migration policies focus on integration of settled immigrants at the expense of marginalizing and excluding illegal immigrants. Keywords: Dutch criminal code; Dutch immigration policies; human smuggling; illegal immigrants; international terrorism; migration control; Netherlands; organized crime; trafficking in human beings

The article is devoted to the peculiarities of legal relations in the field of international cooperation in combating migrant smuggling and human trafficking. It has been determined that smuggling of migrants and human trafficking have long been among the transnational crimes in terms of profitability. The article proves that this area is characterized by clearly structured and organized criminal syndicates, which direct their profits to the development of other even more dangerous activities. The article describes the main features of trafficking in human beings under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which complements the UN Convention against Transnational Organized Crime. Research of influence of exogenous and endogenous factors on development of modern world trafficking. It is determined that international cooperation in criminal matters is one of the most important prerequisites for the organization of combating and preventing trafficking in human beings and smuggling of migrants. The article outlines the key elements of the implementation of trafficking in human beings in accordance with Article 3a of the Protocol to Prevent and Suppress Trafficking in Human Beings. A number of international normative and legal documents regulating the implementation of the state policy on combating human trafficking and smuggling of migrants have been proposed and paid attention to. It has been proven that, according to Europol, smuggling of migrants is carried out by criminal networks that provide various services: from forgery of documents to bribery of law enforcement officials. Various forms of international cooperation are superficially described: extradition of criminals, mutual legal assistance, transfer of criminal proceedings to another country, transfer of convicts, cooperation for confiscation, cooperation between law enforcement agencies, including information exchange and cooperation in investigations, joint investigation using special investigative methods.

Human smuggling and human trafficking are part of mixed migration flows, which are defined as complex population movements concerning both regular (i.e. documented) and irregular (i.e. undocumented) migrants. Even though migration rates have been steady since the 1990s, the forced displacement of people is on the rise worldwide. There are often similarities between the trafficking and smuggling of people, but the profiles of the persons affected and, consequently, the legal responses differ. It is important therefore to distinguish, in law and in practice, between human smuggling and trafficking, even though both are considered a form of organised crime. Yet, despite their different legal status, they are often conflated, including by law enforcement agencies, courts and support service providers, which leads to unsatisfactory protection and services being offered to trafficked and smuggled persons who find themselves in situations of vulnerability. This chapter provides an overview of the legal framework on migrant smuggling, with a particular focus on maritime migrant smuggling, followed by human trafficking, which is further considered in the context of modern slavery legislation. The final section examines human trafficking and human smuggling in conflict and the corresponding jurisprudential developments in international criminal law.KeywordsHuman traffickingHuman smugglingModern slaveryMaritime migrant smugglingIrregular migrationArmed conflict

In order to develop an effective criminal justice response, it is crucial to truly understand the phenomena at hand. The analysis of the two phenomena singled out for this contribution – namely trafficking in persons and smuggling of migrants – will be focussed at trying to understand the nature and extent of the involvement of organised criminal groups therein. To that end, this article explores what we know, what we do not know and what we should know about the involvement of organised criminal groups in trafficking in persons and smuggling of migrants. The relationship between organised crime and trafficking in persons , and the relationship between organised crime and smuggling of migrants, is taken into consideration on a multitude of levels. Additionally, serving as a significant counter-weight for organised involvement, it is stressed that a significant role is reserved for un-organised criminality in these phenomena. Because of its importance, this aspect is equally explored and its consequences for criminal justice responses are analysed. On the basis of the findings of enormous variety in criminal involvement in both trafficking in persons and smuggling of migrants, criminal justice responses are in high need of re-consideration.

German immigration policy is characterised by a tough rhetoric against immigration and less restrictive and more pragmatic dealing with factual immigration. Many instruments developed in Germany have become standard elements of European migration policy. This chapter gives a short historical review on immigration history with a particular reference to illegal migration. It presents and discusses relevant current statistical data from the field of illegal immigration, human smuggling and trafficking in human beings. It then reviews the public perception of these phenomena and reveals a dominant narrative that over-emphasizes the role of human smugglers and traffickers. The chapter also reviews the implementation of the victim-witness-protection scheme. It concludes that the focus on the plight of trafficking victims in public debates does not result in a consequent and unconditioned protection of victims but serves as legitimization for tighter crime control. Keywords: crime control; criminal law; European migration policy; German immigration policy; human smuggling; human trafficking; illegal migration; victim-witness- protection scheme

Generally speaking, the organized crime is a very complex phenomenon and quite heterogenic that adapts to the various requirements of economy and political and social institutions of the countries where it emerges and operates. Subject to the criteria that are taken as basis for its classification, the criminal phenomena emerge and operate in various types of organized crime. Hence, the Republic of Kosovo has introduced punishments against the organized criminal groups and major types of crime that emerge and expand in the shape of organized crime, including smuggling of migrants and trafficking in human beings. The criminal phenomena in the form of organized crime in the modern world which appears to be very concerning and quite threatening for the whole society, is trafficking in human beings and smuggling of migrants. Therefore, it is very important to study and identify all matters which bring together and separate these two criminal phenomena, which have emerged and continue to be present in various places and countries throughout continents and that have caused fundamental political, social, economic, cultural changes, etc. The key matters to be treated are as follows: Legal Framework of Republic of Kosovo which treats and punishes the organized crime, smuggling of migrants and trafficking in human beings, including the distinct points between these two criminal offences.

Generally speaking, the organized crime is a very complex phenomenon and quite heterogenic that adapts to the various requirements of economy and political and social institutions of the countries where it emerges and operates. Subject to the criteria that are taken as basis for its classification, the criminal phenomena emerge and operate in various types of organized crime. Hence, the Republic of Kosovo has introduced punishments against the organized criminal groups and major types of crime that emerge and expand in the shape of organized crime, including smuggling of migrants and trafficking in human beings. The criminal phenomena in the form of organized crime in the modern world which appears to be very concerning and quite threatening for the whole society, is trafficking in human beings and smuggling of migrants. Therefore, it is very important to study and identify all matters which bring together and separate these two criminal phenomena, which have emerged and continue to be present in various places and countries throughout continents and that have caused fundamental political, social, economic, cultural changes, etc. The key matters to be treated are as follows: Legal Framework of Republic of Kosovo which treats and punishes the organized crime, smuggling of migrants and trafficking in human beings, including the distinct points between these two criminal offences.

Attempts to address the problem of trafficking in persons on an international, regional and national basis are relatively recent. The ‘Bali Process’ refers to an ongoing programme of practical cooperation between over 40 Asian and Pacific countries which arose out of the Regional Ministerial Conferences on People Smuggling, Trafficking in Persons and Related Transnational Crime held in Bali in February 2002 and April 2003. The Conferences, together with the United Nations' Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, provided the impetus for the enactment of national legislation to criminalize trafficking in persons. This article analyses the criminal justice response to trafficking persons in the Asia–Pacific region since the enactment of the Protocol and argues that there are numerous practical problems with the enforcement of new trafficking provisions. Drawing on case studies in Australia and New Zealand, it is argued that other offences may be more easily enforced and that the emphasis on enacting new offences detracts from addressing human rights issues and the social dynamics of migration.

This chapter outlines the Italian law on smuggling of migrants, trafficking in human beings and irregular migration. It points out that in 1998 only Italy commenced to develop legislation on the three phenomena. It then examines legislation introduced in 1998 and points out that the legislator of 1998 did not emphasise the importance of police and judicial co-operation at European Union (EU) level. It also outlines modifications introduced by legislator in 2002. The chapter emphasises that these changes particularly were made on phenomenon of irregular migration. It shows that Italian legislation on smuggling of migrants and irregular immigration is restrictive, although not excessively if the EU reality is taken into account. It then analyses one provision of Schengen Implementing Agreement to demonstrate that the European law considers irregular migration a crime. It also explains why Schengen Implementing Agreement is not respected in the part related to penalisation of irregular migration. Keywords: criminal offence; European law; European Union (EU); illegal immigration; irregular migration; Italian law; Schengen Implementing Agreement; smuggling of migrants; trafficking in human beings

People Smuggling and Trafficking in Persons is a transnational crime that involves many countries trying to work together to eradicate, fight and prevent these crimes. Indonesian Immigration as a government agency that has the function of supervising the movement of traffic in and out of the territory of a country, has a major role in eradicating crimes of people smuggling and trafficking in persons. The strategic geographical condition of Indonesia's territory allows people to be smuggled. There are many factors that influence the occurrence of this incident, one of which is geographical conditions and a high level of poverty and the lack of knowledge of Indonesian citizens related to crimes of trafficking in persons and people smuggling are factors that trigger the occurrence of crimes of human smuggling and trafficking in persons. The high number of perpetrators and victims of People Smuggling and Trafficking in Persons whose victims are Indonesian citizens is a spur and an urgency for Indonesian Immigration to take preventive and repressive measures in eradicating the crime of People Smuggling and Trafficking in Persons. The role of immigration is needed in dealing with this. Law number 6 of 2011 concerning immigration is the legal basis for carrying out the duties and functions of Immigration. One of the functions of immigration, namely supervision, is a major concern in eradicating crimes of People Smuggling and Trafficking in Persons. Supervision is carried out when Indonesian citizens apply for travel documents and supervision at Immigration Checkpoints either at seaports, airports, cross-border posts, or other places as places of entry and exit from the Indonesian Territory which are places where inspections of peop\\tory are carried out. Indonesia, as well as supervision at the borders of the territory of the Republic of Indonesia. Supervision is carried out to ensure that migrants enter and leave Indonesian territory legally through Immigration Checkpoints in accordance with Immigration Law Number. 6 of 2011 concerning Immigration.