Children as Smuggled Migrants and Victims of Trafficking

1. E4J University Module Series on Trafficking in Persons & Smuggling of MigrantsModule 12 CHILDREN AS SMUGGLED MIGRANTS AND VICTIMS OF TRAFFICKING

2. LEARNING OBJECTIVES Upon completion of this module, students should be able to: • Understand levels and patterns of smuggling and trafficking of children, in the context of broader migration patterns; • Analyse the causes of smuggling and trafficking of children and the special vulnerability of children; • Identify the rights and protections granted to smuggled and trafficked children by the relevant international legal framework, in particular the Protocols and the binding Convention on the Rights of the Child; • Understand the elements of a best practice domestic response to protect smuggled and trafficked children, including • Identification and age assessment; • Best interests assessments and determinations; • Guardianship; • Child protection systems; • Children in criminal proceedings; • Durable solutions; and • Understand some of the issues that arise when children themselves are accused of committing smuggling and trafficking offences.

3. Key components of the Module • Children on the move: smuggling and trafficking • Smuggling of children • Trafficking in children • Protecting smuggled and trafficked children: the international legal framework • Protection under the Protocols • The Convention on the Rights of the Child • International guidance and good practice • Protection in practice • Identification and age assessment • Best interests determination and assessment • Guardianship • Child protection frameworks • Children in criminal proceedings • Durable and child rights-based solutions • Children alleged as having committed smuggling or trafficking offences • Exercises

4. Children on the move: smuggling and trafficking • Children represent an increasing percentage of irregular migrants globally, including smuggled and trafficked persons. • More than half the world’s refugees are children (UNHCR, 2016) • Flows of child migrants are mixed: asylum seekers and refugees, seeking economic and social opportunities, victims of trafficking and other crimes, smuggled migrants, unaccompanied or separated from their families, etc. These categories may overlap. • Children are more vulnerable to dangers and risks during their migration process. • Some factors increasing their vulnerability: gender, unaccompanied, age, mental illness or disabilities, etc. • Nevertheless, their vulnerability is not inherent • Children are not a homogenous group, nor are they passive: children express agency and have aspirations, just as adults do

5. Children on the move: smuggling and traffickingSmuggling of children • Adult and children migrants who wish to migrate, but cannot access legal avenues of migration, often engage the illicit services of migrant smugglers as the best or only viable option. • Accurate statistics on migrant smuggling are generally scarce or, in many cases, non-existent. • Many children smuggled remain undetected. • Many States do not collect data and even less disaggregated data for smuggling of children. • Not all smuggling journeys involve abuse or exploitation. Nonetheless, children may face various risks to their lives, safety and well-being. • Unaccompanied or separated children are particularly vulnerable to human rights violations and abuses at all stages of the migration process.

6. Children on the move: smuggling and traffickingTrafficking in children • Children represent one third (1/3) of detected victims of trafficking globally (UNODC 2018 Global Report on TIP). • Children on the move are particularly vulnerable to being placed in situations of trafficking, especially when they are unaccompanied or separated from their families. • Unlike smuggling of migrants that require an element of transnationality, the crime of trafficking can happen in the country of citizenship of the victim. A child can therefore be trafficked in his or her home State.

7. Protectingsmuggled and traffickedchildren: the international legalframeworkProtection under the Protocols

8. Protectingsmuggled and traffickedchildren: the international legalframeworkThe Convention on the Rights of the Child International law recognizes a distinction between adults and children and requires that children be granted a greater level of protection. • The foremost international source of children’s rights is the legally binding Convention on the Rights of the Child, adopted in 1989. • The rights contained in the Convention must be applied without discrimination to all children. Therefore, smuggled and trafficked children, whatever their legal status, have the same rights as any other child within a State’s jurisdiction.

9. Protectingsmuggled and traffickedchildren: the international legalframeworkInternational guidance and good practice • The 2016 New York Declaration for Refugees and Migrants and the 2018 Global Compact on Safe, Orderly and Regular Migration emphasize States’ international obligations to children in the context of migration. • The Principles and Guidelines, Supported by Practical Guidance, on the Human Rights Protection of Migrants in Vulnerable Situations, published by OHCHR and the Global Migration Group in 2018 state in Principle 10 that the rights of all children must be guaranteed. • Additional guidelines from international organizations, such as UNHCR, OHCHR and UNICEF. • Other international instruments not particularly tailored at children should be interpreted in a child-sensitive manner.

10. Protection in practice • Importance of accurate identification and age assessment • States should operationalize the best interests principle through the use of best interests assessments (BIA) and determinations (BID) • When the child is unaccompanied or separated from his/her family, a holistic protection-based response must include the appointment of a guardian to secure and advocate for their best interests. • States should establish strong child protection system. • This includes access to accommodation, healthcare services and education. • The best interests of the child should be a guiding principle where children act as witnesses to avoid trauma from recounting their testimony. • States should secure durable and child rights-based solutions for children. Whichever solution is pursued, it must uphold children’s rights, consider the views of the child, address their protection needs and be in their best interests.

11. Childrenalleged as havingcommittedsmuggling or traffickingoffences • Was the participation of the child in criminal activity a result of coercion or deception? • Children may be forced or deceived into transporting or assisting smuggled migrants. Smugglers target children to play certain low level roles in the smuggling process, such as crewing migrant smuggling vessels as they are more likely to escape from prosecution. • If victims of trafficking, consent is irrelevant, therefore the non-criminalization principle should apply. In such cases, children should be provided with holistic, practical and child-sensitive supports that foster their prospects for reintegration and the assumption of a productive role in society while the criminals responsible for recruiting and exploiting the child to engage in crime should be effectively detected and prosecuted. • Children alleged as, accused of, or recognized as having committed crimes remain entitled to all rights owed to children under the Convention on the Rights of the Child and international law more broadly.

12. Exercises

13. Education for Justice

14. More information @DohaDeclaration e4j@unodc.org unodc.org/dohadeclaration unodc.org/e4J