PART 1 Box 4: Key elements of the international legal definition of trafficking in persons KEY ELEMENT Action Recruitment, transport, transfer, harbouring or receipt of persons. Means Threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another. Purpose Exploitation (including, at a minimum,24 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). The Trafficking Principles and Guidelines are applicable to trafficked persons and trafficking. They do not apply to migrants who have been smuggled. Article 3 of the Protocol against the Smuggling of Migrants defines migrant 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 permanent resident. Under this definition, migrant smuggling refers only to the illegal movement of persons across international borders. The Migrant Smuggling Protocol criminalizes smuggling when it is for personal gain. Its provisions do not apply to those who procure their own illegal entry or who procure the illegal entry of others for reasons other than gain, such as individuals smuggling family members or charitable organizations assisting in the movement of refugees or asylum- seekers.25 The Migrant Smuggling Protocol does not address mere illegal entry and takes a neutral position on whether those who migrate illegally should be the subject of any offences.26 What are the key differences between smuggling and trafficking? Unlike trafficking, migrant smuggling may well involve but does not require an exploitative purpose or the elements of force, deception, abuse of power or position of vulnerability, or fraud. Another important difference is that migrant smuggling requires the (illegal) crossing of an international border. Trafficking does not require illegal movement of this kind as it can take place within the borders of one country or even when borders are crossed legally. The distinction between trafficking and migrant smuggling is a legal one and may be difficult to establish or maintain in practice. This is because trafficking and migrant smuggling are processes – often interrelated and almost always “Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the Work of its First to Eleventh Sessions, Addendum: Interpretative Notes for the Official Records (Travaux Préparatoires) of the Negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto” (A/55/383/Add.1, para. 88). 25 “Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the Work of its First to Eleventh Sessions, Addendum: Interpretative Notes for the Official Records (Travaux Préparatoires) of the Negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto” (A/55/383/Add.1, para. 88). 24 34 26 Article 5. RECOMMENDED PRINCIPLES AND GUIDELINES ON HUMAN RIGHTS AND HUMAN TRAFFICKING