Smuggling of Human Beings – the international legal framework

Smuggling of Human Beings – the international legal framework IML Training IOM-UNITAR New York 9-11 June 2010 Kristina Touzenis. IOM

Why prevent irregular migration? • to avoid exploitation of irregular migrants by employers, smugglers and traffickers • to prevent the existence of a marginalised group in society thus contributing to social cohesion and stability • to ensure that migration is “managed” and the credibility of legal immigration policies • to ensure satisfactory salary levels and working conditions for national workers and lawfully resident migrant workers, which are undermined by the employment of irregular migrants • to avoid the existence of whole sectors /businesses dependent on irregular migrant labour

International responses: a brief chronology • 1970s • UN Resolutions against migrant smuggling /trafficking • ILO Convention No. 143 of 1975 • 1980s - 1990 • UN Migrant Workers Convention drafted (adopted 18 December 1990; entry into force 1 July 2003) • 2000 • UN International Convention against Transnational Organised Crime and Palermo Protocols

United Nations Convention Against Transnational Organized Crime, 2000 • Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) • Protocol Against the Smuggling of Migrants by Land, Sea and Air (2000)

The Causes of smuggling • Poverty, unemployment, and lack of opportunities • Political and humanitarian crises • In many less developed regions of the world, children are entrusted to more affluent friends or acquaintances with the intention to improve their lives and relieve their families of economic burden • Demand for inexpensive labour • Restrictive immigration policies in traditional countries of destination • Criminal networks and transnational organized crime

The Smuggling process Transfer Agreement with the smuggler (consent) Destination BORDER SMUGGLING END OF RELATION WITH SMUGGLER (Eventual Transit Country)

The Trafficking process Recruitment Transfer EXPLOITATION EXPLOITATION COERCION DECEPTION ABUSEOF POWER Place of Origin Place of Destination

Trafficking is … ACrime against the Individual • Smuggling is… ACrime against the State

The Concept • 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. • Smuggling operations have many of the following characteristics: • a broad transnational reach • networks of service providers to help in various stages of the operationsinfluence on 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 • an association with persons capable of violence within their networks

Article 3 of the Protocol AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR • (a) “Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other materialbenefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident; • (b) “Illegal entry” shall mean crossing borders without complying with the necessary requirements for legal entry into the receiving State;

Scope of the Protocol • To prevent and combat smuggling in persons • To respect the Human Rights of smuggled migrants • Investigation and prosecution • To promote cooperation

Requires States to: • Criminalise smuggling • Co-operate to prevent smuggling • Strengthen border controls to detect smuggling • Address root causes • Appropriate measures to “preserve and protect” rights • Cooperate in return

Non-criminalisation of migrants • Art. 5 Criminal liability of migrants • Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in article 6 of this Protocol.

Criminalisation of smugglers • 1. 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: • (a) The smuggling of migrants; • (b) When committed for the purpose of enabling the smuggling of migrants: • (i) Producing a fraudulent travel or identity document; • (ii) Procuring, providing or possessing such a document; • (c) Enabling a person who is not a national or a permanent resident to remain in the State concerned without complying with the necessary requirements for legally remaining in the State by the means mentioned in subparagraph (b) of this paragraph or any other illegal means.

(a) The smuggling of migrants; • (b) When committed for the purpose of enabling the smuggling of migrants: • (i) Producing a fraudulent travel or identity document; • (ii) Procuring, providing or possessing such a document; • (c) Enabling a person who is not a national or a permanent resident to remain in the State concerned without complying with the necessary requirements for legally remaining in the State by the means mentioned in subparagraph (b) of this paragraph or any other illegal means.

Cont. • Participating as an accomplice in an offence (…) • Organizing or directing other persons to commit an offence

Aggravating Circumstances • 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.

Prevention, cooperation and other measures: • Information • Border measures • Security and control of documents • Legitimacy and validity of documents • Training and technical cooperation • Protection and assistance measures (see upcoming slide) • Agreements and arrangements • Return of smuggled migrants(see upcoming slide)

Protection • Each State Party shall take, all appropriate measures, including legislation if necessary, to preserve and protect the rights of persons, in particular the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment. • Each State Party shall take appropriate measures to afford migrants appropriate protection against violence • Each State Party shall afford appropriate assistance to migrants whose lives or safety are endangered

4.States Parties shall take into account the special needs of women and children. 5. In the case of the detention each State Party shall informe the person concerned without delay about the provisions concerning notification to and communication with consular officers.

Return • Return of smuggled migrants • Each State Party agrees to facilitate and accept, without undue or unreasonable delay, the return of a person who is its national or who has the right of permanent residence in its territory at the time of return. 2. Each State Party shall consider the possibility of facilitating and accepting the return who had the right of permanent residence in its territory at the time of entry into the receiving State in accordance with its domestic law.

3. a requested State Party shall, verify whether a person is its national or has the right of permanent residence in its territory. 4. In order to facilitate the return of a person who is without proper documentation, the State Party of which that person is a national or in which he or she has the right of permanent residence shall agree to issue, at the request of the receiving State Party, such travel documents 5. Each State Party involved with the return of a person shall take all appropriate measures to carry out the return inan orderly manner and with due regard for the safety and dignity of the person.

Prevention and Root Causes Each State Party shall take measures to ensure that it provides or strengthens information programmes to increase public awareness of the fact that smuggling is a criminal activity frequently perpetrated by organized criminal groups for profit and that it poses serious risks to the migrants concerned. States Parties shall cooperate in the field of public information for the purpose of preventing potential migrants from falling victim to organized criminal groups. Each State Party shall promote or strengthen, as appropriate, development programmes and cooperation at the national, regional and international levels, taking into account the socio-economic realities of migration and paying special attention to economically and socially depressed areas

THANK YOU! GJE

Smuggling of Human Beings – the international legal framework