Blog post written by Dr Jean-Pierre Gauci and Francesca Romana Partipilo (British Institute of International and Comparative Law), and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
Migrant smuggling is defined in the Smuggling Protocol (art.3) as:
“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”.
Objective 9 of the UN Global Compact for Migration addresses the issue of migrant smuggling. The new objective highlights some important issues, including the need to differentiate between trafficking and smuggling, the need to protect smuggled migrants (including from criminalisation for being subject to smuggling) and the critical role of cooperation in preventing, prosecuting and punishing smuggling. The Final Draft however does not move the needle forward in terms of global implementation of the Smuggling Protocol and especially its protection provisions.
Evolution of Objective 9
In this section, we reflect on the evolution of the objective from the perspectives of its relationship with the Smuggling Protocol, the human rights of smuggled migrants, the criminalisation of smugglers and the issue of cooperation. We argue that, notwithstanding the important contribution made by Objective 9 to the protection of smuggled migrants, there remain various issues on which the Final Draft has failed to move the needle forward. This represents a missed opportunity to further strengthen the rights of smuggled migrants.
First, as regards the relationship with the Smuggling Protocol, the various drafts of the Compact have softened the requirement on States to fully implement the requirements of the Smuggling Protocol. The first draft spoke directly of: ‘Sign, ratify or accede to, and implement the Protocol (…)’. In the ‘Draft Revision One’, this was softened to ‘Encourage signature, ratification, accession and implementation of the Protocol’. By the Draft Revision 2, the reference to encouragement had been softened to: ‘Promote signature, ratification, accession and implementation’. Interestingly between the Draft Revision 2 and Draft Revision 3, the reference to signature was dropped so that the final text refers to ‘Promote ratification, accession and implementation of the Protocol’. By way of context, it is worth noting that at time of writing the Protocol has 146 Parties and 112 Signatories.
Second, on the issue of criminalisation, the Final Draft of the Compact reflects the requirements of the Protocol, in seeking criminalisation through legislative or other measures, of smuggling committed intentionally, in pursuance of financial or other material benefit, and for the crime to be considered aggravated in certain circumstances set out in international law. There is a clear and unequivocal commitment in the Protocol, furthered in the Compact, to ensuring that the law penalises smugglers and that policy and practice ensure they no longer act with impunity. The emphasis on the requirement of intent and financial or other benefit is critical, especially when seen in a context where humanitarian and other rescue operators are being impeded from performing their role under the pretext of (amongst others) counter-smuggling investigations. Nonetheless, the fundamental requirements of ‘intentionality’ of the conduct and of the connected financial or material benefits were not included in the first drafts of the Global Compact and were only added to the document later. The requirement of the intentionality of the conduct was included in Draft Revision 2 of the Global Compact, while Draft Revision 3 envisaged that the financial or other material benefit for the smuggler could be obtained either directly or indirectly, therefore enlarging the scope of the punishable conduct and bringing it in line with the definition set out in the Protocol. The re-iteration of the requirements of ‘intent’ and ‘financial or other material benefit’ should provide an implicit impetus for States to refrain from actions that hinder search and rescue (SAR) operations. Nonetheless, this requirement has not prevented several governments from employing domestic criminal law in order to criminalise SAR activities carried out by private vessels and NGOs, effectively hindering humanitarian action in the Mediterranean Sea and leading to hundreds of avoidable deaths.
Third, the counter-side of criminalisation relates to the criminalisation or otherwise of smuggled migrants for irregular entry. Whilst, in line with the Protocol, smuggled migrants should not be criminalised for the very fact of being smuggled, the issue of penalisation for irregular entry remains a critical concern. The Protocol does not make provision in this regard. Critically, Article 31 of the Refugee Convention makes provision for non-penalisation of refugees ‘on account of their illegal entry or presence’. The Compact, set out to address this issue. The Zero Draft called on States to ensure that national legislation reflects irregular entry as an administrative, not a criminal offence (Objective 9, art.23, para.d). This was considered a positive development. By Draft Revision 2, the wording had changed to a commitment to ‘Work towards policies and practices that treat the circumstances of irregular entry and stay as an administrative rather than a criminal offence’. By the Final Draft, this requirement is eliminated and instead, the position is reverted to that as set out in the Protocol in that States commit to ensuring that migrants do not become liable to criminal prosecution for having been the object of smuggling (Objective 9, art.25) but this ‘notwithstanding potential prosecution for other violations of national law’. Any new protection from prosecution for irregular entry that the Zero Draft proposed has therefore been eliminated in the Final Draft.
Whilst failing to push forward non-criminalisation for irregular entry and to tackle other protection dilemmas the compact still makes a number of important provisions relating to protecting the human rights of smuggled migrants. In particular it commits to:
Develop gender-responsive and child-sensitive cooperation protocols along migration routes that outline step-by-step measures to adequately identify and assist smuggled migrants, in accordance with international law.
This provision, which is a result of the evolution of the objective from the Zero to the Final Draft, merits some unpacking. First, the idea of developing gender and child sensitive protocols an important one – and not one that’s staple in discussions of migrant smuggling. It reflects a human rights discourse that is often sidelined when discussing smuggling. An explicit provision regarding unaccompanied minors and their particular safeguarding needs would have further strengthened this provision. Second, the commitment to ‘identify and assist’ smuggled migrants is also relatively new (although it does receive a mention in the UNODC Model Law on smuggling). In abstract, it is certainly a positive thing – smuggled migrants might require assistance and need to be identified in order to access such assistance. The risk of course is that such identification is vehemently pursued not for the purpose of assisting smuggled migrants and respecting their human rights, but rather for the purpose of ensuring punishment for ‘irregular entry’ and/or return as soon as possible. The commitment to ensure that ‘counter-smuggling measures are in full respect for human rights’ provides limited comfort on this issue. Such respect must necessarily include effective access to an asylum system and the application of the non-discrimination principle.
Key to international efforts combatting migrant smuggling is the issue of international cooperation (see Jean-Pierre Gauci and Patricia Mallia, ‘The Migrant Smuggling Protocol and the Need for a Multi-faceted Approach: Inter-sectionality and Multi-actor Cooperation’). The Smuggling Protocol is intended to promote such cooperation. As for the Global Compact, while the first draft of the document did not explicitly mention international cooperation amongst states, it did refer to the necessity to ‘intensify joint efforts to prevent and counter smuggling’ (Objective 9, art.23) and to ‘institutionalise transnational mechanisms to share information and intelligence’ on smuggling-related issues (Objective 9, art.23, para.b), recognising the fundamental role that transnational cooperation could play in preventing and countering smuggling. Draft Revision 1 explicitly noted the need to ‘strengthen capacities and international cooperation to penalise, investigate and prosecute the smuggling of migrants’ (Objective 9, art.24). Further, Draft Revision 2 envisaged ‘cross-border law enforcement and intelligence cooperation in order to prevent and counter smuggling of migrants with the aim to end impunity for smuggler’ (Objective 9, art.24, para.c). Therefore, the Final Draft of the Global Compact contains a clear commitment to international cooperation to prevent, investigate, prosecute and penalise the smuggling of migrants in order to end the impunity of smuggling networks. The Final Draft goes into considerable detail in this regard, identifying the level at which such cooperation should take place (transnational, regional, bilateral), the forms of cooperation that should take place (strengthened capacities, sharing information and intelligence) and the timing of such cooperation (across the cycle from prevention to penalisation). In this regard, the Final Draft of the Compact makes an important contribution moving the needles forward from what the Protocol requires. The Draft text however does not acknowledge the limits of such cooperation, in line with international human right standards. In particular, it fails to acknowledge that such cooperation may, in some situations, result in violations of human rights (as exemplified by the current cooperation between Italy and Libya) which also raises questions of responsibility under the Articles of State Responsibility (See: JP Gauci, Back to Old Tricks). The Compact’s commitment elsewhere towards ensuring that ensuring that ‘counter-smuggling measures are in full respect for human rights’ (Objective 9, art.25.c) provides little comfort in this regard.
From as early as the First Draft, there was a recognition of the risk inherent in conflating smuggling with human trafficking. In earlier commentary on the Objective, we noted that the acknowledgment of the risk of the conflation was a key strength of the compact (see Elspeth Guild and Tugba Basaran, First Perspectives on the Zero Draft, in EU Migration Law blog). The Final Draft represents an important development in this regard. The Zero Draft made a commitment to ‘Amend migration policies and procedures to distinguish between the crimes of smuggling of migrants and trafficking in persons’. Later drafts, added a reference to the need to design and review migration policies in this regard (Zero Draft Plus) and the recognition that ‘smuggling migrants might also become victims of trafficking in persons, therefore requiring appropriate protection and assistance’ (this was added in Draft Revision 2: Objective 9, art.24, para.f). This recognition of the risks of conflation, coupled with an acknowledgement of the potential overlaps is a critically important contribution of the compact in this regard. Indeed, this development reflects the practical reality increasingly faced by smuggled migrants who, given the cost of smuggling, might be pushed into situations of trafficking as a means to pay for the smuggling services. In this situation the distinction between the two crimes must be borne in mind in order to ensure that the highest level of protection is provided to the migrants who were subject to both smuggling and trafficking.
Whilst the Compact makes a reference to the non-criminalisation of smuggled migrants and the requirement of ‘intent’ and ‘financial or other material benefit’, it does not go so far as to highlight the need to protect humanitarian actors, including commercial vessels engaged in rescue and NGO Rescue operators from investigation and prosecution under the pretext of smuggling (or collaborating with smugglers). This is an issue that has arisen on multiple occasions in various countries (examples from the Central Mediterranean come to mind (see FRA, ‘Fundamental rights considerations: NGO ships involved in search and rescue in the Mediterranean and criminal investigations, here). The failure of the Compact to unequivocally address the issues is a missed opportunity. Indeed, while the requirement of ‘intent and financial or other material benefit’ could in principle provide an impetus for States to refrain from actions that hinder search and rescue operations, state practice reflects a different scenario, with criminal proceedings initiated against NGOs and private individuals for their alleged support to smugglers and irregular migration. The recent events in the Mediterranean Sea, including the seizure of NGOs’ vessels and the legal actions taken against their crews, demonstrate the necessity to clearly demarcate the boundaries between legitimate humanitarian action and support to irregular migration. The requirement of ‘intent and financial or other material benefit’ is a useful tool to operate this fundamental distinction and ensure that domestic criminal law is not instrumentalised to prosecute humanitarian actors. However, the failure of the Final Draft to clearly highlight the need to protect humanitarian actors from frivolous accusations and prosecutions reflects a failure of the Draft in this regard.
Moreover, the Final Draft of the Compact fails to address the real reason migrant smuggling occurs at all and is such a profitable ‘enterprise’ – and that is the lack of real and effective alternatives by way of available safe and legal pathways. The provision of legal pathways for regular migration would not only improve the protection of the human rights of migrants but also increase solidarity and responsibility-sharing among states (see Leonie Ansems De Vries, Henry Alexander Redwood and Jean-Pierre Gauci, ‘Legal Pathways to Protection: towards the provision of safe, legal and accessible routes for refugees and vulnerable migrants’ here). Importantly, the Final Draft, through Objective 5 sets the objective of facilitating regional and cross-regional mobility and to review and revise existing options and pathways for regular migration. This is very much left within the remit of labour migration although it briefly notes that such opportunities would also benefit migrants in vulnerable situations. (see commentary Objective 5).
On balance, the Final Draft of Objective 9 represents a missed opportunity to move the needle forward both in the protection of smuggled migrants and in addressing migrant smuggling more generally. Given the emphasis that States (especially States in destination countries) place on the need to combat smuggling, one would have expected the Compact to provide more meat to the obligations as they arise from the international legal framework (most notably the Smuggling Protocol). The Final Draft text does not do much of this, albeit re-iterating some important elements including the need to clearly differentiate between trafficking and smuggling, the need to protect smuggled migrants and emphasising the need to prevent smuggling and punish smugglers. The hope is that the adoption of the Compact will provide renewed energy to the fight against smuggling, and to the development of new ideas of how the phenomenon can really be addressed, whilst respecting and promoting the rights of smuggled migrants.
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