By Analise Magri – Paralegal
Perhaps two of the most heinous crimes threatening modern society are human trafficking and migrant smuggling. From within their very nature, both trafficking and smuggling seek a form of material profit at the expense of severely degrading the lives of human beings. Even though most often the two terms have been used interchangeably, the crimes are in their own right independant and distinct, and this notwithstanding the fact that confusing the terms is sometimes inevitable.
Taking the crime of human trafficking as our starting point, this crime has been mainly defined through various international instruments as “the recruitment, transportation, transfer, harbouring 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 labour or services, slavery or practices similar to slavery, servitude or the removal of organs (Palermo Protocol).” The Maltese legislator has also sought to comply to the afore definition through the introduction of Subtitle VIII Bis (Of the Traffic of Persons) as deduced within article 248A et seq. of the Criminal Code.
From the afore definition, one can easily note the necessary existence of three essential elements for the crime to be able to subsist – in so far as it is essential to have a) the act, b) the means, and c) the purpose. In order to leave no stone unturned and no crime going unpunished, the legislator has specifically defined these three elements within the precincts of the same definition.
Human Trafficking does not distinguish between the person trafficked is a fully grown adult or a young child. In a similar manner, this crime does not either distinguish between race, religion, or social backgrounds. Any individual may become trapped within its clasps. Notwithstanding however, the legislator has added protection vis-a-vis minors who fall victim of the crime of human trafficking in so far as the perpatrator who trafficks a minor, need not engage in violent or threatning means in order for him to be found guilty of human trafficking. The tender age of the victim prevails over seemingly elementary requisites of the crime.
The crime of migrant smuggling has been regulated by the Maltese Legislator through the provisions of the Criminal Code, Chapter 9 of the Laws of Malta, through Sub-title IV B in that article 337A provides for a well-rounded definition of the crime as “any person who with the intent to make any gain whatsoever aids, assists, counsels or procures any other person to enter or to attempt to enter or to leave or attempt to leave or to transit across or to attempt to transit across, Malta …”. In a nutshell, this crime can be said to encompass the making of profit or a profitable business by means of seizing and abusing of the migrants’ desire and need to leave the confines of a particular country and enter illegally into another with the prospects of a better future.
Perhaps one of the most fundamental features of migrant smuggling is the emphasis imposed by legislators on the “financial or other benefit.” It is an essential requisite for this crime to subsit that the perpetrators must seek some form of benefit whether monetary or otherwise through the displacement of human beings between borders. Consequentially, similar means adopted by humanitarian groups with the intention of moving migrants to safe destinations do not qualify as a crime in terms of the law – and this in order to ensure that those who are aiding migrants improve their position, do not get punished as a result.
Furthermore, the definition provides that migrant smuggling will exist where a smuggler has procured or facilitated a migrant to enter or stay in a country of which the migrant was not a national or permanent resident, and did not have the documents required by that country’s domestic law. It is thus also essential that the smuggler has the required state of mind and therefore the actus reus of committing the crime of migrant smuggling.
As discussed during the course of this article, the crimes of human trafficking and migrant smuggling hold stark differences between one another. However, whilst admitting of similarties, they remain amongst the major growing criminal activities in modern society effecting several countries accross the board.