Oñati Socio-Legal Series (Aug 2020)
When people become "merchandise": legal responses to fight in favor of the victims and against the mafias that traffic in the Mediterranean Sea
Abstract
Thousands of people risk their lives to cross the Mediterranean Sea towards an uncertain but promising future. In their journey, they are at the mercy of the organized groups that control the corridors to Europe who consider them no more than merchandise from which they can obtain a benefit ... or two: one from the person or their relatives for reaching the old continent and one from their exploitation. This consideration of the migrant as a "thing" makes the thin line that separates smuggling from the crime of trafficking in human beings blur if not disappear. Given this reality, the policy followed by the EU and its member states has been to treat the situation as a strictly irregular immigration problem, without going into the study of the circumstances and vicissitudes that each person has had to pass until they arrive "to safe harbour". This situation erases the possibility of lending such persons the condition of "victim", and after analysing the human and legal problems of such an approach, the article proposes to focus not so much on the migrant who has been the victim of abuses throughout but on the mafias that have made a profit with their exploitation. Along these lines, the text proposes following the route marked out by the Palermo Protocols as well as offering legal frameworks for specific and non-opposing sector areas, which complement the main norm whose object is the fight against organized criminal structures. Also, the article suggests that this crime of traffic be refocused not so much on the consent of the migrant but on that of the trafficker and finally, that the judicial and/or administrative authorities keep in mind the option of applying both legal figures instead of the current practice which alternates between one of other of the two regimes (trafficking or smuggling). With this, perhaps it is possible to fight in a more efficient way than until now against this scourge and in any case, at least a more dignified and humane treatment would be ensured to people who have suffered the scorn of not being considered or treated as what they are, human beings.
