Workshop on Criminalisation of Assistance to Undocumented Migrants - Report Annex
Annex 1
Two recent UN protocols deal with trafficking and smuggling, respectively:
A. UN Protocol on Trafficking, November 2000. In this protocol[8] trafficking is defined as:
"the recruitment, transportation, transfer, harbouring or receipt of persons, by the threat or use of abduction, fraud, deception, coercion, or the abuse of power or by 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…"
B.UN Protocol on Smuggling of Migrants, November 2000. In this protocol [9] smuggling is defined as:
"the procurement of the illegal entry into or illegal residence of a person in a State Party of which the person is not a national or a permanent resident in order to obtain, directly or indirectly, a financial or other material benefit "
It should be noted that the term ‘trafficking’ tends to describe movements of individuals against their will, whereas ‘smuggling’ refers to voluntary movement on the part of the migrant. However, how the difference between the two can be recognised in practice is not clear.Both protocols are, in fact, drafts supplementing the (draft) UN Convention against Transnational Organised Crime, signed in Palermo, November 2000.
Although both protocols explicitly refer to the Refugee Convention, criminalisation of those smuggled is excluded and protection of trafficked persons should be guaranteed[10]. These and other weaknesses might be remedied upon ratification.
Annex 2 -References
[1] Revised edition dated 23.2.2001: doc. 5645/01 DROIPEN 9 MIGR 4 COMIX 56 (confidential)
[2] Revised edition:dated 23.2.2001 doc. 6091/01 DROIPEN 15 MIGR 6 COMIX 106 (confidential)
[3] Summary of recommendations regarding the Proposal for a Council Framework Decision on Combating Trafficking in Human Beings, submitted by Human Rights Watch and Anti-Slavery International. Washington/London, undated.
[4][5] ECRE’s comments on the French Presidency proposals for a Council Directive defining, and Framework Decision on preventing, the facilitation of unauthorised entry, movement and residence. Brussels, 7 November 2000.
[6] UNHCR observations on the Draft Council Directive defining the facilitation of unauthorised entry, movement and residence and the Draft Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry and residence. Brussels, 12 March 2001.
[8] Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the United Nationas Convention against transnational organised crime. UN 2000 (only advanced copy of the text is available
[9] Protocol against the smuggling of migrants by land, sea and air, supplementing the UN Convention mentioned in the footnote above.
[10] See UNHCR Summary Position dated 11 December 2000 on the Protocol against the Smuggling of Migrants by Land, Sea and Air and the protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing het UN Convention against Transnational Organised Crime.
