A/HRC/37/50
close links of organ trafficking networks with the police or organized crime are reported to
prevail.53
34.
All variations of human trafficking involve the intentional infliction of severe mental
or physical pain or suffering. While the primary purpose of trafficking is exploitation, the
infliction of pain and suffering is always instrumentalised for intermediate purposes such as
coercion, intimidation, punishment and discrimination, all of which are defining elements of
torture. Should one of these elements be missing, human trafficking generally will meet the
threshold of other cruel, inhuman or degrading treatment or punishment. Thus, where human
trafficking is carried out by or at the instigation or with the consent or acquiescence of State
officials, it will breach the absolute and non-derogable prohibition of torture and illtreatment.54 In practice, perpetrators of torture and ill-treatment against migrants include not
only smugglers and traffickers, but also border guards, militias and police and, in various
contexts, there is evidence of corruption and collusion between State officials and
traffickers.55
3.
Relation to State policies of deterrence and criminalization
35.
The business models of trafficking and abusive smuggling networks have entailed a
significant increase in violence and ill-treatment suffered by migrants not willing or able to
pay exorbitant smuggling fees, as well as by those falling victim to trafficking for the most
cruel, inhuman and degrading purposes the human mind can conceive.
36.
It cannot be stressed enough that the unrestrained growth of the migrant smuggling
and trafficking business in many parts of the world has been made possible primarily by the
increasingly restrictive, punitive and deterrence-based migration laws, policies and practices
adopted by States, which have deprived millions of migrants of safe and regular migration
pathways and pushed them into illegality, thus effectively preventing them from reporting
even the gravest abuse to law enforcement authorities and from seeking their protection.
37.
In order to put an end to the horrendous suffering caused by migrant trafficking and
abusive smuggling, therefore, it is not enough for States to continue to fight corruption and
crime, which may be a symptom of the underlying problem, but is not its root cause. In the
view of the Special Rapporteur, the only way of dissolving the business models of migrant
trafficking and abusive smuggling for good is to provide migrants with safe and regular
migration pathways, and to ensure the effective protection of their human rights not only in
theory, but also in practice.
E.
Non-Refoulement
38.
In both customary and treaty law, the prohibition of torture and ill-treatment is further
concretized by the principle of non-refoulement, which prohibits States from "deporting"56
any person to another State's jurisdiction or any other territory where there are substantial
grounds for believing that he or she would be in danger of being subjected to torture or ill-
53
54
55
56
UNODC, AssessmentToolkit:Trafficking_in_Persons_for_the_Purpose_of_Organ_Removal(2015),
pp.30-37; EUP, Directorate-General_for_External_Policies: Trafficking_in_Human_Organs(2015),
pp.21, 36-40, 43, 63-64.
OSCE, Trafficking_in_Human_Beings_Amounting_to_Torture_and_other_Forms_of_Illtreatment(2013), pp.20-27; A/HRC/7/3(15.01.2008), §§56-58.
UNICEF, Child_Trafficking_in_Europe:_A_Broad_Vision_to_Put_Children_First(2008), p.38;
UNICEF,
Harrowing_Journeys:_Children_and_youth_on_the_move_across_the_Mediterranean_Sea,_at_risk_o
f_trafficking-and-exploitation(2017), pp.20, 24; OSCE,
Trafficking_in_Human_Beings_Amounting_to_Torture_and _other_Forms_of_Ill-treatment(2013),
p.20.
The term "deportation" is here used for any removal of persons from the jurisdiction of a State
without their genuine, fully informed and valid consent, including expulsions, extraditions, forcible
returns, forcible transfers, renditions, rejections at the frontier, pushbacks and any other similar acts.
Similar: CAT, GC_No.4_(2017)_Art.3, §4.
11
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents