A panel discussion was jointly organized by Migrant Forum in Asia (MFA), Cross-Regional Center for Refugees and Migrants [CCRM], Global Research Forum on Diaspora and Transnationalism [GRFDT], and Civil Society Action Committee (CSAC) on the topic “GCM Objective 9:Strengthen the Transnational Response to Smuggling of Migrants”, on 27thOctober 2020. The session was chaired by Mr. William Gois, Regional Co-ordinator, Migrant Forum in Asia [MFA], with expert speakers from various countries weaving a narrative that spanned continents.
Unique opportunity for turning things around
According to Mr. Kevin Hyland, Chair, Leadership Group for Responsible Recruitment, Institute for Human Rights and Business [IHRB], there exists an enormous gap in dealing with situational smuggling in the context of migration, with all the legislations focusing primarily on protection of the borders. Mr. Hyland urged the need for the replacement of a singular or a straight-forward approach in protecting the international borders by incorporating the occurrence of smuggling as an organized crime and taking appropriate measures to prevent this.
“We should treat the smuggled people with humanity, and adopt a coordinated joined approach to handle smuggling.”, Mr. Kevin Hyland highlighted.
Smuggling of migrants can only be dealt with by ensuring that the emerging need of the poor for a sustainable livelihood shall not be a choice between life and being exploited. When people are ingrained in commerce, trade, etc., efforts must be made to ensure that the opportunities presented does not motivate them to take bad decisions; and to aid in their recovery once wrong choices are made and they are struggling with the after effects. “The smuggled migrants of today continue to be vulnerable tomorrow”, Mr. Hyland reminded.
Between ‘don’t know’ and ‘don’t want’
Mr. Donato Colucci, Regional Immigration And Border Management [IBM]Specialist at the International Organization for Migration, acknowledged that smuggling is a crime. But the impetus to smuggling is the limited or inaccessible legal pathways. The governments should keep this in mind and work on facilitating legal migration.
“We need to put ourselves in the shoes of the migrants.When you have no choice left behind, your only and sole objective is to move and change yourcurrent situation”: Mr. Donato Colucci.
There should be proper linking of the needs of survival of individuals to the demands and opportunities in other countries. The lack of legal knowledge among people leads to the occurrence of criminal activities. Authorities should think from the migrant’s point of view. When the business set-up is legal, there shall be fewer chances of illegal activities taking place. Mr. Colucci also raised the thought that with many migrants lacking the basic knowledge like the use of passport and visa, rights are almost meaningless words to them. Low skilled migrant workers must have access to education on these legal matters and they must be empowered, for they are the most exploited.
The only way to measure smuggling is often by looking at what states are doing to intercept smuggling. The lack of data favors the modus operandi of smugglers and is also one of the reasons behind the migrants choosing to be smuggled across borders. Hence, cooperation is the key in counteracting smuggling of migrants and human trafficking, and coordinated responses must be formulated.
Distinguishing between Trafficking and Smuggling
Addressing anti-smuggling and immigrations measures that were adopted recently, Miss. Morgane Nicot, Crime Prevention and Criminal Justice Officer, Human Trafficking and Migrant Smuggling Section at the United Nations Office on Drugs and Crime [UNODC], said that around 20 years ago during the time of policy formulations, there was a collective discussion of trafficking and smuggling, with no distinction made between the two. Today, while its theoretically easier to draw a line between trafficking and smuggling in international definitions, this has not been transposed to national laws, Ms. Nicot highlighted.
“In practice, separating trafficking and smuggling might be detrimental to people. Because there are real efforts being made to identify traffic victims, but smuggled migrants whose rights have been breached, may not have access to justice either”: Ms. Morgane Nicot
From the protection perspective, it can be stated that rights must be avail to all, and not just those who are conventionally agreed upon to be victims. There is a need for acknowledgement of the fact that smuggled migrants can also be victims and refugees, and this must be followed up by necessary measures to aid them. A review mechanism for the implementation of the UN Convention Against Transnational Organized Crime must be instituted to follow upon the anti-smuggling protocols adapted by states. Other stakeholders like Civil Society Organizations must be brought together and trained to better understand what is at stake and to give their voices a platform in policy formulation, Ms. Nicot concluded.
Criminalization of Aid Providers
Ms. Lina Vosyliute, a Research Fellow at CEPS Justice and Home Affairs Unit, EU, had words with smuggled people, prosecutors, officials, etc., and is well versed with the issue and changes made in the approach to migrant smuggling. EU’s legal instrument has a very liquid system of legislation, as pointed out by the Hungarian government, which is giving them the right to choose whether or not to criminalize humanitarian assistance, through its approach of “facilitation of regular migration which doesn’t require financial or other material motive for intentional assistance to be recognized as a crime”. This created a legal uncertainty in what kind of assistance constitutes to be a crime in EU.
“This approach (to migrant smuggling) went in the wrong direction; the European Commission is trying to grapple with the situation. Recent recommendation has been to narrow the scope by exempting acts mandated by law from criminalization”: Ms. Lina Vosyliute
Speaking about the political narrative surrounding the migrant smuggling business, research conducted showed that in Italy, smuggled migrants themselves where facilitating the process. There have been cases reported of criminalization of boyfriends or parents for hosting their dear ones. International organizations and civil societies have also been vulnerable to criminalization due to aid provided.
There is a big rhetoric about the organized criminal groups which results in various stakeholders being tackled for wrong reasons. National security is one clear-cut example of an arena that is very much impinged by these current approaches, because whenever civil societies are prevented from distributing food or providing shelter under this provision, it is becoming easier to abuse this vulnerability of migrants, rendering the whole act counterproductive, Ms. Linaconcluded.
Where Do NGOs Stand?
Mr. Borislav Gerasimov, Communications and Advocacy Officer, Global Alliance Against Traffic in Women [GAATW], while accepting smuggling as a crime against the state, points out that it is not a crime against the human rights of people. Smuggling exists because of the state’s restrictive migration and asylum policies. Anti-smuggling measures adopted further harm migrants who can’t reach their destination countries, whether for safety or economic opportunities.
“For human rights NGOs, it is not really appropriate or necessary to say that ‘you work against smuggling’…still some things human rights NGOs can do in the area of smuggling as part of GCM or smuggling protocols are the broader measures to promote safe migration, for example, by informing migrants about existing and legal migration opportunities” : Mr. Borislav Gerasimov
NGOs can assist migrants in the situation of aggregated smuggling, and promote the distinguishing of smuggling from trafficking. States must restrain from talking about smuggling and trafficking in the same manner and there should be a distinction made between the two. At the same time, different measures must be developed to address them without criminalizing the victims of both.
Mr. Gerasimov also highlighted the ways to deal with smuggling and the violations of migrant rights, through measures like opening up of the borders and increasing universal spending in health care.
The panel discussion was very productive in analyzing the thin line between crime and right to pursue good life: the choice that all migrants resorting to smuggling make.
Mr. Unnikrishnan V is pursuing a Master’s in Economics. He has a deep-rooted interest in Migration, Development and Health issues. Twitter Id- @unnikrishnan_21