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Interview Roxane de Massol Rebetz – ‘Vulnerability doesn’t come out of a vacuum.’

The legal distinction between victims of human trafficking and victims of migrant smuggling is unjust, argues De Massol Rebetz in her PhD thesis. In certain instances, smuggled migrants should be treated the same as victims of human trafficking.

Context leading to the distinction

Against the backdrop of fear of the Mafia

In 2000, government leaders had to pick a location to discuss transnational organised crime. They chose Palermo, the capital of the Italian island Sicily, for its symbolic ties to the topic of their meeting. It was there, just outside Palermo, on the A29 highway, that a few years earlier judge Giovanni Falcone was assassinated by the Sicilian Mafia in a car bombing.

At the time, world leaders were facing the effects of globalisation. They feared the more prominent presence of organised criminal groups, such as mafia groups, who were perceived as a threat to the well-being and welfare of nation states. At the same time, there was a surge in migration movements. But migrants were seen as a potential threat to national security. States were worried about their sovereignty; they wanted to stay in charge of who was granted the right to stay and who wasn’t.

Against this political backdrop, the United Nations Convention against Transnational Organised Crime was adopted. In it, a sharp legal distinction was made between victims of human trafficking and ‘objects’ of migrant smuggling. The parties to the Convention were only obliged to give protective rights to the former.  

Belgian law to answer criticism

The distinction was criticised by scholars, because, in practice, some smuggled migrants were, like the victims of human trafficking, exploited by being subject to force, threat, and physical or psychological violence. The Belgian legislature acknowledged that the distinction was unfair and adopted a law in 2005 that granted smuggled migrants in ‘aggravating circumstances’ the same rights as victims of human trafficking. Yet, Massol de Rebetz’ research reveals that the protective procedure is underused for smuggled migrants. To find out why, she spoke with countless people in Belgium including police officers, specialist investigators in smuggling and trafficking, investigative journalists, officials from the Ministry of Justice and the Foreigners’ Office, and members of NGOs who support victims of trafficking or aggravated of smuggling. She also came up with proposals for solutions. Her extensive empirical research led to her PhD thesis.

In what ways is your dissertation novel?

‘When we talk about migrant smuggling, we often look at what’s going on at the external border of the Schengen area, for example the border between Greece (a Schengen country) and Turkey (not part of Schengen).

I looked at the movements within the Schengen area, the so-called Intra-Schengen movements. This area is often imagined as being borderless, but a Schengen area with no border controls at all doesn’t exist. In practice, Member States (of which most are also Schengen area countries) heavily govern the mobility of people. Member States are not a fan of the so-called secondary migration movements. These are migrants who move from the country in which they first arrived to seek protection/resettlement elsewhere in the European Union, despite not having the authorisation to move in the area – for example, the individuals you see in Calais.’

Transit spaces

‘To deal with secondary migration movements, Member States have formal border controls and informal practices, which are often applied in so-called transit spaces within the Schengen area: bottlenecks where migrants gather to reach their desired destination. Member States don’t want to have these ad hoc settlements on their territory, because they are considered a nuisance. Residents surrounding these transit spaces are not necessarily happy seeing 300 migrants gathering around trying to cross a border.’

Governing transit spaces

‘So governments of Member States have three options. They either take everybody in and start the administrative process to determine whether they have the right to stay legally, or they detain some of them in migrant detention centres because they are staying illegally on their territory. But it’s often not possible or desirable to do that because these centres are completely packed. So, the last option is to displace people, i.e., forcing them to constantly move and to encourage them to go back home. One example is the dismantling of the ‘Calais Jungle’. In Northern France the practice is still: if you see a group of migrants, make them move.’

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The construction of this evil archetypal figure of the migrant smuggler allows state authorities to stay away from the root cause of smuggling

‘In action plans and policy documents, migrant smuggling is depicted as involving a passive smuggling ‘object’ – the smuggled migrant – and a purely evil smuggler. The construction of this evil archetypal figure of the migrant smuggler allows state authorities to stay away from the root cause of smuggling – global inequality – and thereby discharges themselves from their responsibilities.

One good way to fight migrant smuggling would be to establish more legal pathways. By making border crossing harder, Member States are feeding the business they claim to be fighting. As a result, low key smugglers are being replaced by highly professional groups who ask a lot of money from migrants, reinforcing the risk of exploitation. Migrants end up being exposed to violence and life-threatening situations, as we saw last summer in the English Channel. Many individuals were desperate to reach the United Kingdom, so they started swimming and using little boats. We haven’t seen this before, but that’s what happens when you make border crossing very difficult.

So, there’s an inherent contradiction. On the one hand, it’s acknowledged that smuggling is becoming more professional, more dangerous, and can involve the abuse and exploitation of migrants. Yet vulnerability does not come out of a vacuum. The role of border policies, practices, and state actions matter. Authorities are responsible, if not for creating, at least for reinforcing the vulnerability of migrants.’

How can we get out of this deadlock?

‘A holistic kind of solution would be best, where we look at migrant policies from a more general perspective, for example by examining or adapting a more inclusive and protective migration policy. And we should establish more legal pathways.

More bridges between practitioners, and scholars and individuals working in NGOs should be built.

I’m not saying that the dichotomy should be eradicated, or that there should be a borderless Europe, but we need to revise the assumption on which these two phenomena are based, by looking at the grey zone and the links between smuggling and trafficking and extend protection when necessary. More bridges between practitioners, and scholars and individuals working in NGOs should be built. Everybody should have an accurate picture of the situation on the ground. In the field of border studies, state actors are often underrepresented. But it’s important to have these voices heard. Academics should understand the bureaucratic challenges government officials, such as police officers, face daily and have a clear understanding of what they’re dealing with.’

What would the ideal impact of your research be?

‘The biggest impact imaginable would be for the EU legislature to actually look into the assumption upon which the distinction between the groups is based and to grant more protection in specific cases to smuggled, and I insist, victims.’

That’s a long-term goal, isn’t it?

‘It would require political consensus at the European level which I don’t see coming. So yes, it’s a bit of a lost cause.’

What prevents political consensus?

‘In my opinion, so this is not something I’ve researched in my dissertation, it seems that EU citizens are not necessarily keen on having more migrants. There’s also the rise of anti-elite and anti-immigration parties all over Europe. Even if those political parties don’t manage to govern, their presence will cause more moderate parties to take a hard-line stance on migration. So, if we were to open or extend the protection of rights to more individuals, we would create the obligation on behalf of Member States to welcome more migrants. I’m not sure that Member States would find that very attractive right now. However, together with my colleague Pinar Ölçer, Associate Professor of Criminal Law and Criminal Procedure, I have developed a solid, creative, and realistic argument that the European Court of Human Rights could extend the protection of smuggled migrant victims. This solution is included in my PhD thesis.’

Has your work changed your worldview?

‘My research has encouraged me to see life in grey. I try to avoid thinking in black and white, which is something that we tend to do automatically.

I would call for more nuance. People want shortcuts for everything. We’re being forced to have clear opinions and to provide equally clear answers. Whereas sometimes I think it’s totally okay to say that something is complicated, and for that reason we don’t have the answer yet. What we should say instead is: what we can do, is to explain the problem well and provide the potential causes of the problem. Based on that examination, we can then advocate for change in either a political or legal way.’

More information?

De Massol Rebetz wrote her doctoral thesis ‘Beyond the Dichotomy between Migrant Smuggling and Human Trafficking’ under the supervision of Maartje van der Woude, Professor of Law and Society at Leiden University, Professor Masja van Meeteren, Professor Criminal Law and Criminology at Radboud Universiteit, and Joanne van der Leun, Professor of Criminology at Leiden University. She defended her thesis on 25 May 2023.

You can read the summary of the thesis here.

Photo by Jametlene Reskp via Unsplash. 

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