Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

100 | PRACTITIONERS GUIDE No. 65. Smuggled personsAn even higher number of migrants attempting of reach a destinationState are forced to make use of smuggling organisations.Under the Protocol against the Smuggling of Migrants by Land, Sea andAir (Smuggling Protocol), smuggling means “the procurement, in orderto obtain, directly or indirectly, a financial or other material benefit, ofthe illegal entry of a person into a State Party of which the person is nota national or a permanent resident”. 253 Smuggled persons are distinguishedfrom trafficked persons in that their participation in the illegalentry process is voluntary, though they may nevertheless in the courseof the process be subjected to coercion, ill-treatment or other violationsof their human rights. In contrast to trafficking, smuggling involves atleast a moment in which the migrant undertakes an informed and voluntarydecision to participate.Given their particular vulnerability, obligations under human rights lawto take measures to protect individuals who the authorities know orought to know will be at risk of violations of their human rights, are ofparticular relevance to smuggled persons. As regards specific protection,since smuggled persons are not perceived as victims of crime inthe same way as trafficked persons, but as willing participants, suchlimited special protection as they enjoy arises from international criminallaw, and is aimed at facilitating their collaboration with the prosecutorialsystem in order to arrest, prosecute and dismantle the smugglingnetwork.Under the Smuggling Protocol, States have the obligation to “preserveand protect the rights of persons who have been the object of [humansmuggling] as accorded under applicable international law, in particularthe right to life and the right not to be subjected to torture or othercruel, inhuman or degrading treatment or punishment.” 254 They mustafford migrants appropriate protection against violence that may beinflicted upon them, whether by individuals or groups, by reason ofbeing the object of human smuggling, and must provide appropriateassistance to migrants whose lives or safety are endangered by reasonof being the object of human smuggling. 255 In particular, “StatesParties shall take into account the special needs of women and children.”256253 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UnitedNations Convention against Transnational Organized Crime, Adopted and opened for signature,ratification and accession by General Assembly resolution 55/25 of 15 November 2000,Article 3(a) (UN Smuggling Protocol).254 Article 16.1, UN Smuggling Protocol.255 Article 16.2-3, ibid.256 Article 16.4, ibid.