Transnational Crime and Law project

On

Human Trafficking vis-à-vis Human Smuggling

Submitted to:

Mr. Manoj Kumar

Assistant Professor
Faculty of Transnational Crime and Law

Submitted by:

Pratyush Pandey
Roll no. – 103 (17/2017/1603)
Semester VII, Section – B
B.A. LL.B. (Hons.)

Submitted on:

December 10th, 2020

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Atal Nagar, Raipur, Chhattisgarh, India, 492002
 DECLARATION OF ORIGINALITY

I, Pratyush Pandey, have undergone research of the project work titled “Human Trafficking vis-
à-vis Human Smuggling,” as a student of Transnational Crime and Law. I hereby declare that
this research project has been prepared by the student for academic purpose only, and is the
outcome of the investigation and preparation done by me under the able guidance and
supervision of Mr. Manoj Kumar, Assistant Professor, Faculty of Transnational Crime and Law,
Hidayatullah National Law University, Raipur. The author endorses certain views of his own and
gives due credit to the jurists wherever required.

Pratyush Pandey
Roll No. – 103 (17/2017/1603)
Semester VII, Section B
Class of 2022

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 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deepest regards to my guide Mr.
Manoj Kumar, for his exemplary guidance, monitoring and constant encouragement throughout
the course of this study. The good wishes, help and guidance given by his time to time shall carry
me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude towards our Honourable Vice
Chancellor Sir, for providing us with all the requisite facilities and resources including an
equipped Library which helped me with all the bibliographic research work and also a fully
furnished IT Lab providing the web resources without which this project could not have been
possible.

I am obliged to the faculty and staff members of HNLU for the valuable information provided by
them in their respective fields. I am grateful for their cooperation during the period of my
assignment.

Lastly, I thank almighty, my parents and my friends for their constant encouragement without
which this assignment would not have materialised.

I sincerely thank you all.

Pratyush Pandey

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 Table of Contents
DECLARATION OF ORIGINALITY .......................................................................................................................... I
ACKNOWLEDGEMENT ............................................................................................................................................ II
INTRODUCTION .........................................................................................................................................................1
Research Methodology ..................................................................................................................................................2
Problems of the study ....................................................................................................................................................2
Objectives ......................................................................................................................................................................2
Nature of the Study ........................................................................................................................................................3
Sources of Data.............................................................................................................................................................. 3
Chapterisation ................................................................................................................................................................ 3
Time Limit .....................................................................................................................................................................3
Limitation ......................................................................................................................................................................3
CHAPTER I Background and elements of human trafficking and smuggling .............................................................. 4
CHAPTER II .................................................................................................................................................................5
Human trafficking and smuggling: insider ....................................................................................................................5
CHAPTER III ................................................................................................................................................................ 7
suggestive measures and recommendations...................................................................................................................7
CONCLUSION ............................................................................................................................................................. 9
BIBLIOGRAPHY ...................................................................................................................................................... IV
 INTRODUCTION

Why focus on human trafficking? First, human trafficking underscores the transnational nature
of security threats from non-state actors. In the last few decades trafficking has become a global
phenomenon that traverses interstate borders and recruits perpetrators internationally and
constitutes a multimillion dollar business.
Second, traffickers threaten states’ security interests on several levels. On one level, trafficking
poses a problem for local governance and human security. On another level, crime may be
destabilizing at the global level by leading to a corruption of civil society
Perhaps on a deeper level, transnational trafficking imperils state sovereignty: precisely because
trafficking networks can operate in a surreptitious manner and gain covert access to states’
territories, they undermine states’ control over borders and territory, a fundamental pillar of state
sovereignty.
while states enjoy a monopoly of force domestically, their policing force is constrained by
international boundaries, granting additional leverage to criminal networks in circumventing
state authority.
Last but not least, human trafficking is unique among types of organized crime in imposing a
normative burden on states to engage in counter-crime efforts.

The decision to concentrate on states’ border and migration control policies to model the
interrelationship between transborder crime and states’ policy responses is guided by several
motivations. First, borders delineate the reach of state authority and mark the extent of territory
over which states enjoy monopoly over coercive force. Effective monitoring of borders is
essential to countering non-state actors: migration and border control policies serve to deter and
screen out clandestine undesirables. Second, states’ border and migration policies capture states’
efforts to counter threats that might weaken their sovereignty.

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 RESEARCH METHODOLOGY

In the course of this project, the facet of human trafficking as well as human smuggling is
discussed in a descriptive perspective.

PROBLEMS OF THE STUDY

This project studies and analyses the scenario of human trafficking and smuggling.

OBJECTIVES

1. To study the facet of human trafficking and smuggling..

2. To analyze the gravity of incidents regarding human trafficking and smuggling.
3. To study the suggestive measures to combat the scenario..

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 NATURE OF THE STUDY

The research project is descriptive and analytical in nature.

SOURCES OF DATA

The project is largely based on secondary sources of data, however tertiary and electronic
sources of data have been referred to a great extent. Books, case laws, journals have been used as
references.

CHAPTERISATION

1. Chapter I aims at discussing the background of human trafficking and smuggling.

2. Chapter II lays out the details going inside human trafficking and smuggling.
3. Chapter III explains the suggestive measures to combat human trafficking and smuggling.

TIME LIMIT

This project report has been prepared within a time span of fifteen (15) days.

LIMITATION

The scope of this project’s study is limited to the study of human trafficking and smuggling in
India.

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 CHAPTER I

BACKGROUND AND ELEMENTS OF HUMAN TRAFFICKING AND

SMUGGLING

The severity of the human trafficking has been so much that it is spreading like a disease all over
the world and the need for combating this heinous organized crime was felt strongly by the
United Nations and all states across the world. Various efforts have been made all over the
world, across the nations to eliminate trafficking of human, and especially the trafficking of
women and children. These efforts have been spear headed by the United Nations, various NGOs
and many governments, but a great deal of damage had already been done against women and
children by exploiting them long before the United Nations and the government became alert
about the problem.

There are four elements that differentiate smuggling from trafficking :

1. smuggled persons always travel voluntarily; trafficked persons can either begin their
trip voluntarily or may have been coerced or kidnapped;
2. trafficked persons are used and exploited over a long period of time;
3. an interdependency occurs between the trafficked person and organised crime groups;
4. trafficked persons are eligible for further networking (recruitment for criminal purposes)

The issue of smuggling of human beings first appeared with regards to the historical aspect with
the appearance of the borders between states, because as it is known from the definition of the
offense of smuggling of human beings this is done in the case of illegal crossing of boundaries
from one place to another or certain persons staying in a place without fulfilling the necessary
conditions to stay in that state. Combating and preventing criminal offense of smuggling of
human beings, it is almost impossible without the cooperation of the police of the respective
states, the fact that the combating and prevention of this offense is more closely associated with
police work. But in practice it often happens that the offense of smuggling of human beings
carried out by organized crime groups, this fact even more difficult for the organs of prosecution
for the purpose of investigation, detection and lighting of these offenses.

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 CHAPTER II

HUMAN TRAFFICKING AND SMUGGLING: INSIDER

The term “human trafficking” is closely linked to the concept of “human smuggling”. The
United Nations’ Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children (2000), considers trafficking in persons as: “the recruitment,
transportation, transfer, harboring or receipt of persons, by means of 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”. In brief, it can be argued that human trafficking contains the
components of recruitment, transportation and harboring or receipt of persons by the traffickers.
Traffickers do such things by using various methods like deception, threat or use of force or
coercion or abuse of authority. The objective of the traffickers is exploitation of trafficked
persons including sexual exploitation, forced labor or services, slavery or practices similar to
slavery and servitude.
Generally, human trafficking is confused with human smuggling. Article 3 of the Protocol
against the Smuggling of Migrants by Land, Sea and Air , defines human smuggling 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”. This incorporates unlawful border facilitation in entrance of a person into another
country, by the smugglers, of which the smuggled person is neither a citizen nor a permanent
resident and smuggler does this for material benefits. Smuggled persons pay huge amount to the
smugglers and enter a country. They use deceptive methods including fraudulent documents for
this purpose. Human trafficking is a much bigger level of exploitation than that of human
smuggling. Trafficking in human beings is crime against individuals as well as states whereas
human smuggling is crime against state in which exploitation of person does not exist.

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Workers are victims of fraudulent recruitment practices in the trafficking cases. They come
under the debt trap due to the payments made to the traffickers for promised employment in the
destination country. This further enhances their vulnerability as they become susceptible to debt
bondage and involuntary servitude. Trafficking cases also includes passport confiscation, non-
payment or limited payment of wages, restriction of movement, isolation from the community,
and physical and sexual abuse as means of keeping victims in compelled service. Foreign victims
are found in labor trafficking and sex trafficking.

Thus, smuggling of migrant involves the consent of migrants to be smuggled. Trafficking

victims have either never consented or consent is achieved through fraudulent means or coercion.
Besides, smuggling ends with the migrants arrival at their destination, whereas trafficking
involves continuous exploitation in some manner to obtain illicit profits for the traffickers.
Furthermore, smuggling is always transnational whereas trafficking may not be. The later can
occur regardless of whether victims have moved across the borders or from one place to another
within the same state.

People involved in trafficking and smuggling share a common objective of evading national
legal frameworks and dodging the law enforcement agencies. They have formed concerted
networks and coalitions in order to enhance their operational competence and revenue potential.
Different groups have recognized the requirement to collaborate, to provide safe houses, local
contracts and documentation so that the profit can be maximized.

In spite of these distinctions between human trafficking and human smuggling, sometimes
creating a workable distinction between smuggling and trafficking becomes difficult. This
happens when smuggled persons also become victims of trafficking. This makes it difficult to
differentiate between trafficking and smuggling of persons. Numerous times traffickers use
deceptive and fraudulent means to get the consent of the victims. Often they promise them a safe
transportation and high standard job at the destination country. Such smuggled migrants are
exposed to abuse and exploitation either while being transported or on arrival. Hence, they are
recruited as smuggled migrants, but turned into the human trafficking.

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 CHAPTER III

SUGGESTIVE MEASURES AND RECOMMENDATIONS

Some recommendations that follow from this analysis to better address the problem of human
trafficking, particularly in terms of the involvement of organised criminal groups:
In order to better address the problem of human trafficking, one of the key measures that should
be implemented widely is that of holding accountable the end users of labour or services
provided by victims of trafficking. This could be done through the criminalization of such use
while either knowing or disregarding that the provider is a victim of trafficking.
There is very little empirical research and reliable data on trafficking and the involvement of
organized criminal groups in trafficking. As both involve hidden populations, gathering reliable
data is extremely challenging. But without that empirical data, meaningful and effective anti-
trafficking measures are unlikely. Researchers should address the very large gap in knowledge
about traffickers, by collecting more information about traffickers, including offender interviews
in their research approaches, and seeking more information on the organization of trafficking
activities.
Governments should seek closer cooperation with high-risk industries on the issue of human
trafficking and on hiring responsibly. The risk of bad publicity when a specific company is
revealed to be using exploited labour could be an incentive for companies in high-risk industries
to become more proactive.
Public information campaigns should warn employers of the severe consequences of using
trafficked labour should they become the subject of law enforcement investigation. And to be
credible, there needs to be more prosecutions of businesses that are not doing enough to prevent
the use of trafficked labour and of clients of exploited service providers.
Civil society too has a role in demanding accountability from producers, consumers, and
government. Focusing on the “demand” side can also include public awareness campaigns about
the services or products produced by exploited men, women and children.
Advertising campaigns aimed at raising awareness of potential victims of trafficking should not
give the impression that it is only men who are involved in trafficking, but that women or
couples may also be involved.

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The continuing low rate of prosecutions suggests research is also needed on the efficacy of anti-
trafficking training for police and justice personnel, and evaluation of the effectiveness of
existing investigative techniques.
Finally, the consistently low numbers of convicted traffickers raises questions about whether
anti-trafficking efforts have looked closely enough at corruption within destination countries,
i.e., within the state’s police, border officials, criminal justice system, and administrative and
regulatory sectors, as well as where markets for illicit services and goods exist within important
sectors of the legitimate economy, such as transportation and banking.

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 CONCLUSION

In conclusion, The severity of the human trafficking has been so much that it is spreading like a
disease all over the world and the need for combating this heinous organized crime was felt
strongly by the United Nations and all states across the world. Various efforts have been made
all over the world, across the nations to eliminate trafficking of human, and especially the
trafficking of women and children. Combating and preventing criminal offense of smuggling of
human beings, it is almost impossible without the cooperation of the police of the respective
states, the fact that the combating and prevention of this offense is more closely associated with
police work. But in practice it often happens that the offense of smuggling of human beings
carried out by organized crime groups, this fact even more difficult for the organs of prosecution
for the purpose of investigation, detection and lighting of these offenses. To combat this
Governments should seek closer cooperation with high-risk industries on the issue of human
trafficking and on hiring responsibly. Civil society too has a role in demanding accountability
from producers, consumers, and government.

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 BIBLIOGRAPHY

• Cullen-DuPont, Kathryn(2009), Global Issues: Human Trafficking, New York:

Infobase Publishing House.
• Vayrynen, Raimo(2005), Illegal Migration, Human Trafficking, and Organized
Crime, Helsinki: World Institute for Development Economic Research.
• United Nations Office on Drugs and Crime (2004), United Nations Convention
Against Transnational Organized Crime And The Protocols Thereto, Vienna:
Vienna International Centre.

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