The Criminalization of   
  Migrant Smuggling   

Smuggling of migrants is commonly understood as the intentional organization or facilitation of the movement of persons across international borders, in violation of laws or regulations, for the purpose of financial or other gain to the smuggler. This common-sense description remains conceptually useful and has been made more explicit through the United Nations Convention Against Transnational Organized Crime adopted in November 2000 by the UN General Assembly, and presented for signature in December 2000 in Palermo.

The biggest threat posed by smuggling does not come from the smuggled migrant, or the large numbers of such migrants, but rather from the strengthening of organized crime syndicates and their increased ability to circumvent governance systems. Variations in the classification of a migration offence and in the nature of the penalty are dependent upon particular national approaches to the treatment of malafide migrants, and are not governed by the international Convention or its Smuggling Protocol. Thus, the Palermo Protocol does not spring from anti-immigration or antimigrant perspectives. It helps to refine a Convention on transnational organized crime, which is an anti-crime initiative.

Important Points

  1. The Smuggling Protocol covers not only the procurement of illegal entry but also the procurement of illegal residence. In other words, the facilitation or organization of malafide means for remaining in a country in an unauthorized fashion—no matter how one has entered it—is also considered to be smuggling.

  2. The Smuggling Protocol further specifies that attempts at smuggling, even if unsuccessful, are violations. This provision is also found in national laws. The Netherlands, for example, articulates a similar approach in national law, while expanding the concept of violation of border to include the European Union's Schengen borders.

  3. The Smuggling Protocol is only intended to deal with migrant smuggling activities that concern an "organized criminal group", leaving open the possibility that smaller scale, ad hoc smuggling actions would fall outside its purview. Migrants without proper clearance to enter or remain in a country may choose to attempt entry or unauthorized stay without assistance or facilitation. These "entrepreneurial" violators of migration laws or regulations do not fit the category of smuggled persons and as such do not fall under the strictures of the Palermo Protocol, though they commonly are subject to the same national laws and regulations directed against all irregular migrants, including applicable parts of a State's Criminal Code, and may be subject to a range of penalties.

  4. The Smuggling Protocol does not criminalize the smuggled migrants themselves; migrants would not be liable for a Protocol offence on the basis of having been smuggled. However, these migrants may still be liable for punitive actions under the provisions of immigration or related laws in a particular country. The penalties in this regard derive from national laws and regulations and not from the Protocol. They range from "a slap on the hand" to imprisonment, expulsion or deportation, and, at times, the violations may fall under the State's criminal code.

What You Need To Know About...

Adequate Legal Code and Responding to Smugglers

The primary purposes of the Palermo Protocol include the criminalization of smuggling by clarifying the nature of the crime and establishing stronger and more consistent penalties across nations.

Prior to the launching of the initiative to create and enact such a Protocol, many States had no specific penalties for migrant smuggling, or the penalties that did exist were generally less than needed to discourage the crime. National enforcement capacities were equally weak. As awareness has risen around this issue, States are changing and strengthening their laws and enforcement capacities.

States are obliged to ensure an adequate basis against migrant smuggling in their legal code when they sign the Protocol. States may of course also choose to strengthen or align their legal codes without signing the Protocol.

The Nature of Migrant Smuggling

While, by definition, migrants cooperate with their smugglers—even seeking them out and paying them—the act of smuggling can often be a dangerous and abusive one. Reports abound of the death or serious injury of migrants during the smuggling process, whether they are attempting to enter Australia, the United States, Western Europe, or other preferred locales by land or sea, or while they are en-route to these destinations.

Smuggling operations have many of the following characteristics that, while not uniform among smuggling groups, are generally representative and provide a basis for formulating counter-smuggling strategies:

  • a broad transnational reach
  • an ability to create or use diverse networks of service providers to help in various stages of the operations
  • an ability to influence government officials at many levels
  • access to large sums of money at many locations
  • ties with other criminal enterprises
  • the ability to shift areas of operation according to "market" conditions (ease of entry, attractiveness of destination to existing and prospective clients)
  • an association with and high comfort level with persons capable of violence within their networks

The growth of organized smuggling rings can have a dampening effect on the rule of law and public trust in government. In addition to the abuses and dangers to the migrants themselves, such large amounts of money are involved that corruption of public officials and the creation of "shadow" governance systems linked to organized crime can undercut the rule of law. These are among the most disturbing outcomes or spin-offs of large-scale migrant smuggling enterprises.

It seems safe to say that smuggling is many migrants' preferred method of achieving unauthorized entry into many of the more developed countries. The large number of irregular migrants who have succeeded using this strategy undoubtedly helps build the market for more persons to attempt moving in this manner, as well as continually strengthening the smugglers' networks. The risks involved, even when well known, do not seem to outweigh the potential gains. The profits involved provide the means for smugglers to continually update their strategies and techniques, and to pose an everincreasing threat to responsible governance.

How Smugglers Operate

Migrant smuggling activities range from rather simple operations with narrow scope, to those reaching many destinations and offering a full range of services to the client. At the most sophisticated level, these operations involve complex itineraries through several countries combining, where needed, air and land transport and false documents of various kinds including passports, visas, and relevant permits.

Some smugglers are able to co-opt government officials at key points in the process, including those involved in document issuance, document inspection, and entry/exit decisions at various levels.

Migrant smuggling operations are usually highly flexible, with the ability to adjust and change itineraries and strategies quickly in response to changing levels of security at key points in the process. This requires the ability to create or obtain travel documentation, and possibly to secure the collusion of government officials for many different sites at relatively short notice. With substantial sums of money involved, smuggling groups, particularly the larger ones, need to have large amounts of cash available, at many locations, and an ability to manage a large illicit enterprise.

With substantial profits, organized smugglers require ways to launder or hide their ill-gotten gains. This can be done by investing to further build their smuggling business and other criminal enterprises. Research by Interpol has identified links between migrant smuggling operations and other forms of organized crime.

There have been some reports of collusion of employers with smugglers. Reports indicate that some employers arrange the services of smugglers in order to bring migrants to work in the destination country. In such cases, the employee usually arrives indebted to the employer and, as a result, has been exploited.

Smuggling operations are also adept at training or preparing their clients. Migrants can be briefed on what clothes to wear and how to answer particular questions from border and other officials, and be given other means to minimize attention and maximize the probability of a secure border passage and, if possible, a supported stay in the destination country through the asylum system.

Within the smuggling world, the more unscrupulous approaches focus on immediate gain without regard to completing the transaction to the satisfaction of the migrant.

Example

There have been reports of migrants smuggled into Bosnia and Herzegovina and being advised that they were in Slovenia and could walk across the Austrian border into the EU. Instead, they encountered the Slovenian border and were apprehended.

Similar reports on migrants left in the wilderness by their smugglers, or tossed into the sea, are common. These reports support the view that hardened criminals who are willing to severely abuse others, or commit murder for money, populate a segment, perhaps a significant segment, of the migrant smuggling industry.

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