• Rory O'Keeffe, Koraki

'People smugglers’ are not smugglers and are not breaking the law

So, here is the article’s point: the people selling places on boats may be unpleasant. They may have to share at least some of the responsibility for the deaths of men, women and children who pay them and then die on the journeys they make.

But they are not smugglers, and they are also not actually breaking any laws.

Around five years ago, I corrected a person in a BBC World Service radio interview about people movement. They repeatedly referred to people selling spaces on boats as ‘people traffickers’ and I pointed out that they were not traffickers: the people boarding boats wanted to travel. Those selling spaces on boats were in fact people smugglers.

The problem is, I now believe I was wrong. Not about ‘trafficking’ – the people selling places on boats are absolutely not traffickers, no matter how often politicians, including Greek Migration Minister Notis Mitarachis, deliberately misuse the term.

But about smuggling. I am not at all certain that these people are in fact smugglers. And that does make a difference.

First of all, this is not a ‘morality’ piece, though as many regular readers know a lot of our articles, analyses and advocacy do focus on morality, as well as legality and pragmatism – what is the law, why is it the law, does what people are doing work, and what is the right thing to do?

That is, we know that many of the people selling places on boats are unpleasant – though some are simply poor people who have ditched morality for cash: we laud billionaires for that sort of behaviour, and we can at least accept that the system (and governments’ behaviour) drives and enables such behaviour.

Nor is it a ‘pragmatism’ analysis. We already know that targeting ‘people smugglers’ has not worked, once, anywhere at all, to prevent people from travelling when they want and need to.

But it is a legal and definitional piece: are these people actually breaking any laws, and are they, in fact, even ‘smugglers’?

So, here is the article’s point: the people selling places on boats may be unpleasant. They may have to share at least some of the responsibility for the deaths of men, women and children who pay them and then die on the journeys they make.

But they are not smugglers, and they are also not actually breaking any laws.

Throughout history, smugglers have operated two major practices. The first is the secret movement of goods across borders, in order to avoid paying duty and taxes on them.

We could discuss whether this is in fact a particularly negative activity – one would need to balance the fact that taxes can be good, as states can use them to pay for services, against the fact that they are an imposition invented by governments to profit from activities in which they often have absolutely no involvement. But regardless, that is the first category of ‘smuggling’.

The second is ‘people smuggling’ – the movement of people across borders in secret. This could be done for a variety of reasons, including the negative (to help someone avoid punishment for a serious crime or crimes) and positive (for example, people who hid and assisted the escape of Jewish men, women and children from Nazi-ruled areas of Europe: this, again, is where it is important to remember morality, and that what is legal is not always what is correct). People smuggling can be extremely annoying to nation states, and in some cases it can be detrimental to ideas of justice and decency. On the other hand, it can be a life-saving measure.

In both situations, however, it is illegal.

But in the smuggling of goods, and of people, the element of hiding the ‘thing’ to be smuggled is paramount. Laws exist stating that duties must be paid on goods, and that people’s entrance to a country must be known about by that country’s authorities.

The United Nations’ internationally-agreed definition of ‘migrant smuggling’ is: ‘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.’

But the point is that these so-called ‘smugglers’ are not ‘hiding’ people: they arrive in plain sight and as asylum seeking people enter the legal system at the first available opportunity, and they do not enter these countries illegally: it is absolutely legal for them to enter.

From a legal perspective, let us look at the fact that under international, refugee and human rights law, every man, woman and child on Earth has the absolute right to travel, with or without paperwork, and claim asylum in the country they choose as their destination.

We have governments – and in the EU’s case the wealthiest political entity ever to have existed – not only refusing to allow them to travel by providing safe transport on safe routes, but also literally using violence to stop them.

That is, governments and the EU are breaking the law. The people who are selling places on boats simply are not breaking any law*. Far from it. In the absence of any alternative, and the illegal practice of banning people from reaching the places where they want to live in safety, the people selling places on boats are the only people in fact ensuring the people can exercise their fundamental human rights.

Let us make no mistake: they are taking enormous sums of money for what is a genuine right of every man, woman and child on the planet, and the boats they put people in are not safe. But they are the only people providing any form of ‘service’.

They are not ‘smugglers’ and they are not breaking the law.

And this matters. Because smuggling is illegal. That means that every time we hear the term ‘people smugglers’ we think of people who are breaking the law. And indeed – as we have already said, they may be breaking some laws. But they are not breaking the law by selling places on boats. Just the opposite. They are ensuring the law is followed.

So, we need to recognise that these people are exploiting others’ vulnerability. We need to understand that they are placing people in dangerous situations by putting them on boats which are not worthy of the journeys on which they are being sent. Both of these things could be very simply and immediately tackled by governments providing safe, cheap transport to those who want and need it, on safe routes. The fact that governments do not want to do this should be an enormous red flag.

But they are not ‘smugglers’, and they are not breaking the law.

And that matters. It matters because it means that governments and the EU are the only actors in this situation who are breaking international law. And it matters because the word ‘smuggler’ (and the worse and equally incorrect term ‘traffickers’) is being used as a shield and a distraction by governments and the EU from their own awful, illegal activity.

The word ‘smuggler’ is inaccurate, and gives us an entirely wrong impression. It is time we stopped using it, and demanded better from our governments.

The simple fact is, they are boat owners, handed an opportunity to exploit others by governments’ selfish, foolish and deeply unpleasant behaviour towards vulnerable men, women and children.

And that is what we will call them from now on: boat owners. Governments must no longer be allowed to hide behind misleading labels.

*In fact, there are laws they may be breaking: many of the boats onto which they load people are simply not safe for the journey they are making, for example. This is not an attempt to claim that people putting people onto boats are wonderful people, and have no responsibility for the lives lost at sea, just that in this context it is governments, not they, who are breaking the law.

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