On 27th October 2020, a panel discussion was jointly organised by Global Research Forum on Diaspora and Transnationalism [GRFDT], Migrant Forum in Asia (MFA), Cross-Regional Center for Refugees and Migrants [CCRM] and Civil Society Action Committee (CSAC) on the Objective 9 of the Global Compact for Migration, “Strengthen the transnational response to smuggling of migrants”. Various speakers from different organisations shared their views and opinions on smuggling of migrants and human trafficking, drawing distinction between both.
Mr. William Gois, Regional Coordinator, Migrant Forum in Asia [MFA], chaired the panel and kept the session engaging throughout by asking follow up questions and sharing views with the speakers.
Humanising the Victims
The first speaker, Mr. Kevin Hyland, Chair, Leadership Group for Responsible Recruitment, Institute for Human Rights and Business [IHRB], was asked to share his understanding of smuggling in the context of migration ,as well as the gaps in the migration regime that needs to be addressed. Mr. Hyland, focusing on the state of victims of smuggling, stated that in his opinion, most approaches on smuggling were of a single lens which looked only at the protection of borders, and hence failed to look into the other side of smuggled migrants, who were clubbed with criminals who broke the rules, and remained vulnerable. They placed this issue of smuggling in the category of crimes without looking into various forces that led to migrants resorting to being smuggled across borders, and hence they failed at seeing smuggled migrants as victims. Only a coordinated response at addressing the core vulnerabilities can keep migrants away from smuggling and exploitation.
“We need to be coordinated at the same time from essential transit and source countries. They need to look at all elements; of rule of law, vulnerability, human rights, prevention, prosecution, and bringing all that together… we turn this into humanities to look at it more collectively and more coordinated”: Mr. Kevin Hyland
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Importance of Accessible Legal Pathways
Mr. Donato Colucci, Regional Immigration and Border Management Specialist at the International Organization for Migration, explained about the various measures undertaken internationally to effectively deal with migrant smuggling, including the Protocol against the Smuggling of Migrants by Land, Sea or Air, that accompanied the UN Convention against Transnational Organized Crime, which acts as important source of reference in regard to migrant smuggling. Today, the Protocol is ratified by 149 States, with 112 signatories. These measures aim at preventing and countering 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.
“There a lot of violations, not occurring only around the legal framework or on the procedures to enter or to leave a country, there are number of violations that are occurring also when the migrants refer to the irregular, to organized crime to cross the borders because the legal pathways are either very much limited, or sometimes hardly accessible. So, the countries need to work on reaching out the migrants on providing the legal pathway procedures and opportunities”: Mr. Donato Coluncci
Smuggled Migrants shall not become liable to criminal prosecution
Ms. Morgane Nicot, Crime Prevention and Criminal Justice Officer, Human Trafficking and Migrant Smuggling Section at the United Nations Office on Drugs and Crime [UNODC], has had a career that evolved around international criminal justice and protection issues, and providing guidelines to the organization and the member states on issues related to organized crime, migrant smuggling and human trafficking. Ms. Nicot started her address by briefing about the Protocol against the Smuggling of Migrants by Land, Sea or Air , which states 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 and reiterated in other instruments like the UNODC Model Law and the Legislative Guide. 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.” 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.” 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,” the protocols specify. This commitment finds parallel obligations in the International Convention on the Rights of all Migrant Workers and Members of their Families as well. These international conventions require the States to take all appropriate measures, consistent with their international obligations, to protect smuggled migrants’ right to life and their right to not be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
“Historically, 20 years ago, when the protocols were adopted on trafficking persons and smuggling of migrants, the discussions actually started with a joint instrument, as there was no willingness to do something on trafficking and something on smuggling (distinctly).But through discussions, the states realized that they were talking about two different things. In one situation, exploitation was the purpose of criminals and in the other one, there was provision of services to cross the border illegally”: Ms. Morgane Nicot
Ms. Nicot concluded by stating that the measures against smuggling must be taken by keeping in consideration the impact on the rights of migrants, their families and children, and the refugees.
Criminalization of Humanitarian Assistance
Ms. Lina Vosyliute, Research Fellow at the CEPS Justice and Home Affairs unit, EU, explained how the ‘facilitation of regular migration’ by the EU has resulted in intentional humanitarian assistance provided to be recognised as a crime. Based on a research conducted in 2015-16, it has been identified that at least 171 cases of humanitarian assistance were criminalized as facilitators of irregular immigration within 14 different EU member states, even when they were helping and assisting without any financial motive. It has been noted that ‘organised criminal groups’ get involved in transportation of migrants, and this is being monitored by the law enforcement agencies of all the countries during all stages of migration, starting from the selection to the recruitment process. But under this rhetoric, genuine assistance provided to vulnerable migrants and refugees gets mistaken as crime.
“When the UN smuggling protocol was negotiated, the EU decided to have a different approach and they created their own type of crime, that is called ‘facilitation of regular migration.’ The key difference ‘facilitation of regular migration’ and ‘migrant smuggling’ is that it doesn’t require financial or other material benefit or motive for some action of intentional assistance to be considered as a crime…it created legal uncertainty of what is and what is not a crime in the EU”: Ms. Lina Vosyliute
Measures must be necessary
Mr. Borislav Gerasimov, Communications and Advocacy Officer at the Global Alliance Against Traffic in Women (GAATW) and the editor of the Anti-Trafficking Review, started his address by sharing his perspective on whether smuggling should be seen as a crime or not. Mr. Gerasimov points out the fact that smuggling exists because of the restrictive migration and asylum policies of the states. While it is not appropriate or necessary for Civil Society Organizations like human rights NGOs to say that ‘they work against smuggling’, what they can do in the area of smuggling as part of GCM or smuggling protocols, are promoting broader measures to enhance safe migration, for example, by informing migrants about existing and legal migration opportunities.
“Smuggling is a crime against state borders or against state. It is not a crime against human rights.”: Mr. Borislav Gerasimov
Conclusion
The parallels presented above between the commitments in the GCM and the obligations in the Protocol against the Smuggling of Migrants by Land, Sea or Air, as well as other international instruments on the same, 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) which objected to the GCM, are Parties to the Protocol Against Smuggling of Migrants, making both the provisions reinforce each other in protecting the rights of migrants.
Angel Valancia A She is literature student and is currently pursuing PGDM in LIBA, Chennai. She adores new technologies and techniques, and is fond of playing shuttle and basketball.