Border Crisis: Most Unaccompanied Minors are Smuggled In, Not TraffickedThe subject of human trafficking has resurfaced with what is now recognized as a “border crisis” with the flows of unaccompanied minors entering the United States illegally. Human trafficking, a very profitable business (the annual profit derived from it according to United Nations sources is $36 billion/year), is difficult to assess let alone eradicate.

The term trafficking signifies the transportation of persons by means of coercion (whether through force, deception/fraud or abuse of power) into exploitative and slavery-like conditions. Underlying human trafficking is one common denominator: exploitation (the most common forms of exploitation being for sexual and labor purposes) which is not necessarily synonymous to coercion. Not all who are exploited are trafficked but all trafficked are exploited. In all trafficking cases, however, the use of force (direct or psychological) or deception is used to exploit a person for profit.

Here are the main points of what constitutes trafficking:

Human Trafficking and Smuggling

Human Trafficking gained its worldwide spotlight following the adoption in 2000 of the United Nations Convention against Transnational Organized Crime (UN TOC). This principal instrument to combat organized crime was supplemented with two protocols (known as the Palermo Protocols) that came into force in December 2003 and January 2004 respectively:

–       the ‘Trafficking Protocol’ or the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and

–       the ‘Smuggling Protocol’ or the Protocol against the Smuggling of Migrants by Land, Sea and Air.

Trafficking in persons is, according to the Trafficking in Persons Protocol:

• 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 abuse of power or of a position of vulnerability.

• for the purposes of exploitation. Forms of exploitation include but are not limited to sexual exploitation, forced labor, slavery or similar practices, servitude or the removal of organs.

In summary, three elements are at the core of the trafficking process: first the action of recruitment, transportation, transfer, harboring, or receipt of persons; second the means used to commit such acts (threat or use of force, coercion, deception etc.); and third the purpose/motivation behind trafficking acts (forced labor, sexual exploitation, servitude etc.). Human trafficking as such is the intersection of these three components; should one end of the chain go missing, trafficking does not take place.

Moreover, trafficking refers to the recruitment and transport of people with the intent to subject them to exploitation. Exploitation alone, it is important to reiterate, does not constitute trafficking. As the UN Special Rapporteur, Radhika Coomaraswamy notes, “it is the combination of the coerced transport and the coerced end practice that makes trafficking a distinct violation from its component parts.”

One should differentiate between two different notions (referred to through two distinct protocols): smuggling and trafficking. A smuggler helps the migrant cross a border illegally in exchange for a specified amount of money. The migrant is totally aware and willing to move to a particular destination. The smuggling action ends with the migrants’ arrival upon destination whereas, with trafficked migrants, exploitation continues. With smuggling, the focus is on the illegal movements across borders while for trafficking, the emphasis is on coercion and exploitation. The distinction here is on the voluntary and involuntary migratory experiences. Moreover, smuggling is always transnational and always illegal whereas trafficking can take place within state borders and can be legal.

Unaccompanied Minors: Smuggled not Trafficked

Let us go back to our subject of interest, the unaccompanied minors entering the United States illegally. As we saw earlier, trafficking is about the INTERSECTION of three elements: action, means, and motivation.

What about action in this case? It is clear that these children are being transported across borders.

The next question is: with what means? There is nothing to suggest that these children were either forced, coerced, or deceived into crossing the border. Many testimonies even suggest they and/ or their parents were well aware of the multiple opportunities available to them in the U.S.

More importantly, what is the motivation underlying this move? Are these children to be exploited once in the U.S, will they be forced into servitude, menial labor, or sold as sexual objects? Again, that does not appear to be the case, quite the opposite. These children are reunited with relatives already in the United States in many cases, and they will eventually have access to education, health care and other benefits. At a minimum, they will be sent back home.

It is true, however, that not much is known about the “supposed relatives” those children are turned over to. Overwhelmed government officials cannot run systematic and thorough background checks to ensure kids are placed with trustworthy and capable adults. Some of these children may be turned over to adults who are incapable of proper care at a minimum or violent criminals and abusers at worst. Yet, even this grim scenario does not qualify as trafficking. Abuse of children is indeed a crime but not that of trafficking. Exploitation and forced labor is, but ONLY if it is paired with the transport of the children AND the proven INTENT of exploitation.

Let us recapitulate: the only element pertaining to trafficking here is the action of transport across the border. No force or deception appear to have been used throughout this process.

No exploitation is intended either. The motivation of the smugglers is obviously money. As for the parents who are sending their children across the border, their aim is perhaps the desire of a better life, and a possible access to U.S. benefits and citizenship (for themselves and their kids as mentioned in a previous post). Again, it is important to underline this key point, these kids are not exploited once on U.S soil. If anything, it is these kids and their relatives who are exploiting a broken immigration system and a “supportive” administration.

Hence, in this case, there is no human trafficking; it is a pure case of smuggling. One important nuance needs to be made here: people can agree to being smuggled – they can even pay the smugglers – and still be victims of trafficking. Initial consent is not incompatible with trafficking. A person can willingly agree to migrate and work for an employer and still be the victim of trafficking. This consent, however, 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. Was that person transported with the intent to be exploited? As discussed above, the answers to both is no in this particular case.

And if indeed these kids were trafficked as some claim, who are the traffickers? As we know,  human trafficking can be looked upon as a chain that starts with people who, in a way, ‘supply’ the trafficked person and ends with people who benefit from the trafficked person through, for example, forced labor. Consequently, as Coomaraswamy observes, “[c]riminalizing the activities of all parties involved throughout the process of trafficking would facilitate efforts to both prevent trafficking and punish traffickers.” All parties involved here would be the parents at the beginning of the chain, the smugglers; and, U.S. officials and the kids’ relatives at the end. Of course, those who are throwing the term “human trafficking” around are not advocating such prosecutions.

Let us be realistic and not fall into easy traps of victimization. While one may feel sympathy for these children, very few are victims of trafficking. They are simply being smuggled into the United States of America under the assumption they will be welcomed by its current administration. On that last point, they were right.