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 examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
Objective 9 of the Global Compact for Migration aims to strengthen the global response to the smuggling of migrants. Put simply, migrant smuggling is the facilitation of the unauthorized crossing of an international border for a financial or other benefit. In order to improve the transnational response to this crime, the GCM encourages States to adopt a series of interlinked strategies and initiatives aimed at preventing and countering the smuggling of migrants, whilst protecting the human rights of smuggled migrants. Even before the adoption of the Global Compact, migrant smuggling has been the object of increased attention at the international level, and indeed the Compact acts a re-enforcement for the various provisions of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime (Migrant Smuggling Protocol) to which reference will be made throughout this post. The Protocol was adopted as part of a package of 3 protocols that accompanied the Convention on Transnational Organized Crime. At the time of writing the Protocol has 149 States Parties and 112 Signatories.[1]
The overarching commitment in Objective 9 is to:
Prevent and counter smuggling of migrants by strengthening capacities and international cooperation to prevent, investigate, prosecute and penalize the smuggling of migrants in order to end the impunity of smuggling networks.
These are similar objectives to those of the Smuggling Protocol as articulated in its Article 2 which sets out the purpose of the Protocol as including the prevention and combatting of the smuggling of migrants, as well as the promotion of cooperation among State Parties to that end, while protecting the rights of smuggled migrants. It is therefore no surprise that for most of the commitments set out in the GCM one finds parallel provisions in the Protocol and indeed that the GCM commits to the promotion of the ratification of, accession to and implementation of the Protocol.
The importance placed by both the protocol and the GCM on international cooperation in the fight against smuggling of migrants is a recurring aspect of Objective 9 and shows the acknowledgement, by the international community, of the necessity to strengthen bilateral and multilateral cooperation in order to exchange information and establish effective and sustainable strategies against transnational crime generally and migrant smuggling in particular. We return to this point later in this post.
The Compact emphasizes the need to ensure the criminalisation of migrant smuggling. Again, this finds a direct corollary in Article 6 of the Smuggling Protocol which requires signatories to:
adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit: the smuggling of migrants….
The criminalization of smuggling is a sine qua non of the Smuggling Protocol.
Migrants shall not become liable to criminal prosecution for the fact of having been the object of smuggling, notwithstanding potential prosecution for other violations of national law
This requirement mirrors Article 5 of the Smuggling Protocol, which provides that: “migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of smuggling”. This issue is further clarified in other instruments including the UNODC Model Law[2] and the Legislative Guide.[3] The latter expressly notes that “the fundamental policy set by the Protocol is that it is the smuggling of migrants and not migration itself that is the focus of the criminalization and other requirements”. This non-criminalization of being the object of migrant smuggling is a core component of the protection provisions of the Protocol. The Compact and the Protocol, do not engage with the question of whether “illegal entry” should be criminalized or not and leaves this to the discretion of individual States.
Two key issues are worth noting here. First, this overview of the main instruments linked to this requirement reinforces the necessity to clearly distinguish between migrants and smugglers and to protect smuggled migrants from criminalization for the sole fact of having been smuggled. In practice, the distinction becomes very blurred. Take the example of a refugee with some fishing experience seeking the services of a smuggler from Libya to Europe in search of protection. The smuggler suggests an arrangement whereby part of the smuggling fee is waived if the individual pilots the boat towards Europe. Instances like this raise questions as to whether the individual concerned is a smuggler or a smuggled migrant.
Second, it is worth noting that other international Conventions and treaty bodies go farther than the Compact and the Protocol in arguing for the de-criminalization of illegal entry. The Geneva Convention on the Status of Refugees, in its Article 31, paragraph 1, provides for non-criminalization of illegal entry (of refugees). It provides that:
The contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom is threatened in the sense of article 1 (of the convention), enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families released its General comment No.2 on the rights of migrant workers in an irregular situation, where the committee underlined that:
As a deterrent for migrant workers and members of their families in an irregular situation to enter or stay on their territory, States increasingly resort to repressive measures, such as criminalization of irregular migration, administrative detention and expulsion. Criminalization of irregular migration fosters and promotes public perceptions that migrant workers and members of their families in an irregular situation are “illegal”, second-class individuals, or unfair competitors for jobs and social benefits, thereby fuelling anti-immigration public discourses, discrimination and xenophobia. Moreover, migrant workers and members of their families in an irregular situation generally live in fear of being reported to the immigration authorities by public service providers or other officials, or by private individuals, which limits their access to fundamental human rights, as well as their access to justice, and makes them more vulnerable to labour and other types of exploitation and abuse.
The United Nations Working Group on Arbitrary Detention has stated that:
criminalizing illegal entry into a country exceeds the legitimate interest of States to control and regulate irregular immigration and leads to unnecessary detention.[4]
Furthermore, in his 2013 statement “Mainstreaming a human rights-based approach to migration within the High Level Dialogue”,[5] the UN Special Rapporteur on the human rights of migrants stated that:
while it may constitute an administrative offence, irregular migration is not a crime. Irregular migrants are not criminals per se, and should not be treated as such”. In addition, the Special Rapporteur stressed that “irregular entry or stay should never be considered criminal offences: they are not per se crimes against persons, property or national security.
Identify smuggled migrants to protect their human rights, taking into consideration the special needs of women and children and assisting in particular those migrants subject to smuggling under aggravating circumstances
Smuggled migrants can be vulnerable to and often face violence and abuse, particularly at the hands of smugglers. Therefore, Article 6 of the Protocol against the Smuggling of Migrants envisages, as aggravating circumstances, those circumstances that: a) endanger, or are likely to endanger, the lives or safety of the migrants concerned; or b) that entail inhuman or degrading treatment, including for exploitation, of such migrants. Therefore, the rights at risk seem to be the right to life (Article 6 of the ICCPR and 2 of the ECHR), the right to personal liberty, the right to be free from torture and other inhuman or degrading treatment (Article 4 of the CAT and Article 3 of the ECHR).
This commitment finds parallel obligations in the Smuggling Protocol as well as the Convention on the Rights of Migrant Workers and Members of their Family. Article 16 (1) of the Smuggling Protocol requires that States take all appropriate measures, consistent with their international obligations, to protect smuggled migrants’ right to life and to not be subjected to torture or other cruel, inhuman or degrading treatment or punishment. In addition, paragraph 2 of the same provision places an obligation on States to “take adequate measures to afford migrants appropriate protection against violence that may be inflicted upon them, by individuals or groups, for the reason of having been smuggled”. The content of such measures will depend on a case-by-case approach and on the specific circumstances of each case.
Similarly, the Convention on Migrant Workers, in its Article 16 (2), stresses that:
migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions.
Also the Convention on Transnational Crime requires, in its Article 25 on “Assistance to and protection of victims” that:
Each State Party shall take appropriate measures within its means to provide assistance and protection to victims of offences covered by this Convention, in particular in cases of threat of retaliation or intimidation.
It is clear that the identification of migrants constitutes the first step in their protection. In this respect, the Convention on Migrant Workers states that:
Any verification by law enforcement officials of the identity of migrant workers or members of their families shall be carried out in accordance with procedure established by law.
As for the need of women, General Recommendation No.26 of the CEDAW Committee on women migrant workers underlined that:
all women migrant workers are entitled to the protection of their human rights, which include the right to life, the right to personal liberty and security, the right not to be tortured, the right to be free of degrading and inhumane treatment, the right to be free from discrimination on the basis of sex, race, ethnicity, cultural particularities, nationality, language, religion or other status, the right to be free from poverty, the right to an adequate standard of living, the right to equality before the law and the right to benefit from the due processes of the law. These rights are provided for in the Universal Declaration of Human Rights and the many human rights treaties ratified or acceded to by States Members of the United Nations.
An important component of the protection of smuggled migrants is represented by the fundamental prohibition of refoulement. The prohibition is included in Article 33 of the Geneva Refugee Convention, Article 3 of the Convention against Torture, Article 3 of the European Convention on Human Rights and Article 4 and 19 of the Charter of Fundamental Rights of the European Union. In addition, Article II (3) of the Organization for African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa, states that:
No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened.
In the American context, Article 22 (8) of the 1969 American Convention on Human Rights envisages that:
in no case may an alien be deported or returned to a country if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinion.
The scope of these obligations has been upheld by the European Court of Human Rights (see for example Hirsi Jamaa and others v Italy) and the Inter-American Court of Human Rights (see for example: Pacheco Tineo Family v. Bolivia). The IACtHR Advisory Opinion of 24.08.2014 on the Rights and Guarantees of Children in the Context of Migration, where the court states that the term alien should be understood as any person, encompassing all non-nationals.
In this regard, the above mentioned Joint General Comment No.3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No.22 (2017) of the Committee on the Rights of the Child states that:
States parties should respect non-refoulement obligations deriving from international human rights, humanitarian, refugee and customary international law.
The committees further point out that:
States shall not reject a child at a border or return him or her to a country where there are substantial grounds for believing that he or she is at real risk of irreparable harm.
Finally, the committees underline that:
Article 22 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and other international and regional human rights instruments forbid collective expulsions.
Such collective expulsions are also prohibited under other human rights instruments including: Article 4 of Protocol No.4 to the European Convention on Human Rights, Article 19 (1) of the Charter of Fundamental Rights of the European Union, Article 7 of the Draft Articles on the Expulsion of Aliens, and the Human Rights Committee stated, with regard to Article 7 of the ICCPR, that:
States Parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.[6]
Use transnational, regional and bilateral mechanisms to share relevant information and intelligence on smuggling routes, modus operandi and financial transactions of smuggling networks, vulnerabilities faced by smuggled migrants, and other data to dismantle the smuggling networks and enhance joint responses
Transnational cooperation is crucial to dismantle smuggling networks and provide the necessary protection to smuggled migrants. The promotion of international cooperation is a key purpose of the smuggling protocol. Article 7 of the Protocol provides that:
States Parties shall cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea.
Moreover, Article 10 states that:
States Parties, in particular those with common borders or located on routes along which migrants are smuggled, shall, for the purpose of achieving the objectives of this Protocol, exchange among themselves, consistent with their respective domestic legal and administrative systems, relevant information
on a series of matters such as embarkation and destination points, as well as routes; the identity and methods of organizations or organized criminal groups; means and methods of concealment and transportation of persons; scientific and technological information useful to law enforcement.
Furthermore, Article 14 of the Smuggling Protocol specifies that:
States Parties shall cooperate with each other and with competent international organizations, non-governmental organizations, other relevant organizations and other elements of civil society as appropriate to ensure that there is adequate personnel training in their territories to prevent, combat and eradicate [the smuggling of migrants].
As it is clear, the GCM and the other analyzed instruments place great emphasis on the need to strengthen transnational cooperation in the fight against migrant smuggling.
As practical examples of the transnational mechanisms to fight smuggling, it is worth mentioning the Global Action against Trafficking in Persons and the Smuggling of Migrants, a four-year initiative by the EU and UNODC, implemented in partnership with UNICEF in thirteen countries across Africa, Asia, Eastern Europe and Latin America. Further, the Bali Process on People Smuggling, Trafficking in Persons, and Related Transnational Crime, co-chaired by Indonesia and Australia, has 49 members (including UNHCR, IOM, UNODC and ILO) and aims at tackling the issue of smuggling and trafficking and related crimes. The Santo Domingo Pact and SICA – UNODC Mechanism is an interregional initiative for Central America and the Carribean designed to assist Member States in preventing and countering serious and organized transnational crime, including smuggling. Finally, international organizations are also active in the strengthening of bilateral initiatives to combat smuggling, as demonstrated by the UNODC-IOM initiative to counter migrant smuggling launched in March 2018 by the two organizations.
Develop gender-responsive and child-sensitive cooperation protocols along migration routes that outline step-by-step measures to adequately identify and assist smuggled migrants
The GCM places great importance on the necessity to duly address the specific needs of women and children. Parallel requirements can be found in international instruments. For instance, the Convention on the Rights of the Child provides, in Article 3, that “In all actions concerning children.. the best interest of the child shall be a primary consideration”. Therefore, in developing cooperation protocols along migration routes, states must always ensure the best interest of the child and the protection of their rights. In this regard, this part of Objective 9 finds support in General Comment No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin, that stresses that, in the case of a displaced child, the principle of the best interest of the child must be respected during all stages of the displacement cycle. The general comment adds that:
the best interests of the child must also be a guiding principle for determining the priority of protection needs and the chronology of measures to be applied in respect of unaccompanied and separated children.
Further, as far as the needs of children are concerned, Joint General Comment No.3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No.22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration underlines that:
States should ensure that children in the context of international migration are treated first and foremost as children. States parties to the Conventions have a duty to comply with their obligations set out therein to respect, protect and fulfil the rights of children in the context of international migration.
And, that:
States parties should develop policies aimed at fulfilling the rights of all children in the context of international migration, in particular regarding migration management objectives or other administrative or political considerations.
Joint General Comment No.4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No.23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return reaffirms the:
need to address international migration through international, regional or bilateral cooperation and dialogue and through a comprehensive and balanced approach, recognizing the roles and responsibilities of countries of origin, transit, destination and return in promoting and protecting the human rights of children in the context of international migration, so as to ensure safe, orderly and regular migration, with full respect for human rights and avoiding approaches that might aggravate their vulnerability.
Further, the joint General Comment underlined that:
children in the context of international migration, in particular those who are undocumented, stateless, unaccompanied or separated from their families, are particularly vulnerable, throughout the migratory process, to different forms of violence, including neglect, abuse, kidnapping, abduction and extortion, trafficking, sexual exploitation, economic exploitation, child labour, begging or involvement in criminal and illegal activities, in countries of origin, transit, destination and return. Such children are at risk of experiencing violence by State or non-State actors or witnessing violence against their parents or others, particularly when travelling or residing in an irregular manner.
Joint General Comment No.3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No.22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration stresses that:
a comprehensive interpretation of the Conventions should lead States parties to develop bilateral, regional and global cooperation in order to ensure the rights of all children in the context of international migration.
Further, the same general comment recognizes the:
importance of coordinating efforts among countries of origin, transit, destination and return, and their roles and responsibilities in addressing the needs of children in the context of international migration and in safeguarding their rights, with the best interests of the child being a primary consideration.
Finally, the committees:
reaffirm that, in all international, regional or bilateral cooperation agreements on border management and migration governance, the impacts of such initiatives on children’s rights should be duly considered and adaptations made as necessary to uphold the rights of the child.
Facilitate cross-border law enforcement and intelligence cooperation in order to prevent and counter smuggling of migrants with the aim to end impunity for smugglers and prevent irregular migration, while ensuring that counter-smuggling measures are in full respect for human rights
On mutual legal assistance, Article 18 of the Convention on Transnational Organized Crime (under which the Protocol is developed and adopted), provides that:
State Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by the Convention.
On joint investigations, Article 19 of the convention, specifies that:
State Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States, the competent authorities concerned may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis.
Finally, on law enforcement operations, Article 27 of the Convention on Transnational Organized Crime, states that:
States Parties shall cooperate closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offences covered by this Convention. Each State Party shall, in particular, adopt effective measures: (a) To enhance and, where necessary, to establish channels of communication between their competent authorities, agencies and services in order to facilitate the secure and rapid exchange of information concerning all aspects of the offences covered by this Convention, including, if the States Parties concerned deem it appropriate, links with other criminal activities; (b) To cooperate with other States Parties in conducting inquiries with respect to offences covered by this Convention; (c) To facilitate effective coordination between their competent authorities, agencies and services and to promote the exchange of personnel and other experts, including, subject to bilateral agreements or arrangements between the States Parties concerned, the posting of liaison officers; (d) To exchange information with other States Parties on specific means and methods used by organized criminal groups, including, where applicable, routes and conveyances and the use of false identities, altered or false documents or other means of concealing their activities.
Adopt legislative and other measures as may be necessary to establish the smuggling of migrants as a criminal offence, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit for the smuggler, and include enhanced penalties for smuggling of migrants under aggravating circumstances, in accordance with international law
Article 6 of the Smuggling Protocol underlines that each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit: the smuggling of migrant. The reference to the financial or other material benefit is of the utmost importance as it emphasizes that only activities of organized criminal groups acting for profit are to be criminalized, whilst the activities of those individuals providing support to migrants for humanitarian reasons or on the basis of family ties should not be criminalized.
Further, Art.6 (3) of the Smuggling Protocol underlines that:
Each State Party shall adopt such legislative and other measures as may be necessary to establish as aggravating circumstances to the offences established in accordance with this article, circumstances that endanger or are likely to endanger the lives or safety of the migrants concerned; or that entail inhuman or degrading treatment, including for exploitation, of such migrants.
For instance, examples of conduct that could endanger migrants’ lives and safety include being transported in unseaworthy vessels with a significant risk of drowning or being abandoned in the desert or at sea. The Protocol also leaves States Parties free to include additional aggravating circumstances in their legislation.
Pursuant to the UNODC Model Law against the Smuggling of Migrants:
treatment is inhuman where it was premeditated, applied for hours at a time and caused either actual bodily injury or intense physical and mental suffering.
In this regard, provisions in the Convention Against Torture, the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights and others also provides useful reference points.
Design, review or amend relevant policies and procedures to distinguish between the crimes of smuggling of migrants and trafficking in persons by using the correct definitions and applying distinct responses to these separate crimes, while recognizing that smuggled migrants might also become victims of trafficking in persons, therefore requiring appropriate protection and assistance
International Law clearly distinguishes between the crime of migrant smuggling and the crime of trafficking in persons. Key to this distinction is the distinct definitions of the crimes provided in Article 3 of the Smuggling Protocol and Article 3 of the Trafficking Protocol. Whilst each of these can be problematized and questioned, a number of key differences exist between the crimes relating to the question of consent, the requirement of trans-nationality and the question of victimhood.
It must be noted however that in practice, the line between smuggling and trafficking can be blurred and often traffickers use the services of smugglers and smuggling situations can evolve into ones of trafficking. The acknowledgement of this reality in the text of the Global Compact represents a key development.
Take measures to prevent the smuggling of migrants along the migration cycle in partnership with other States and relevant stakeholders, including by cooperating in the fields of development, public information, justice, as well as training and technical capacity-building, paying special attention to geographic areas from where irregular migration systematically originates
The prevention of migrant smuggling is a key purpose of the Smuggling Protocol. It contains a section on Prevention, cooperation and other measures which covers issues around: sharing of information especially between neighboring States, border measures, security and control of documents. Article 14 focuses on “Training and technical cooperation” and envisages that:
States Parties shall provide or strengthen specialized training for immigration and other relevant officials in preventing smuggling and the inhumane treatment of migrants who have been the object of such conduct.
In addition, the provision envisages that states shall cooperate with each other and with competent international organizations, non-governmental organizations, other relevant organizations and elements of civil society to ensure that there is adequate personnel training in their territories to prevent, combat and eradicate the smuggling of migrants.
Furthermore, Article 15 of the Protocol requires States Parties to take measures to strengthen information programmes to increase public awareness on smuggling and of the serious dangers it entails for the migrants concerned. In addition, the provision requires States Parties to cooperate in the field of public information for the purpose of preventing potential migrants from falling victim to organized criminal groups. Finally, the article requires each state to promote or strengthen development programmes and cooperation at the national, regional and international level in order to combat the root socio-economic causes of the smuggling of migrants, such as poverty and underdevelopment.
Conclusion
In conclusion, it is worth noting that whilst the GCM is in itself not legally binding, the parallels presented above between the commitments in the GCM and the obligations in the Smuggling Protocol as well as other binding instruments reflect a binding nature of the obligations and thereby strengthen the provisions in the GCM. It is also worth noting, that all but one country (Israel) who objected to the GCM are States Parties to the Smuggling Protocol, and as such at least in this field, those same provisions bind them.
[1] https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-b&chapter=18&lang=en
[2] Model Law against the Smuggling of Migrants, UNODC (2010).
[3] Legislative Guides for the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocol Thereto
[4] A/HRC/7/4, 10 January 2008, para.53.
[5] “Mainstreaming a human rights-based approach to migration within the High Level Dialogue”, Statement by the UN Special Rapporteur on the human rights of migrants Francois Crépeau, PGA Plenary Session – Criminalization of Migrants, New York, 2 October 2013.
[6] General Comment 20/44 of 3 April 1992, para 9.
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