"A continued priority for States will and should be to improve cooperation on reducing irregular movements and dismantling criminal networks that have made a business out of smuggling migrants or trafficking people, exploiting their desperation and the search for a better life". (Peter Sutherland, former special representative on migration)

Being transnational in nature, migrant smuggling is a multifaceted crime that can only be countered effectively by a transnational coordinated response. Smugglers take advantage of deficiencies in cooperation along smuggling routes when determine their modus operandi. They have proven their agility to build collaborative networks across linguistic, cultural and geographical borders to perpetrate their crimes. Meanwhile, law enforcement and investigators responsible for addressing migrant smuggling have proven less able to cooperate and coordinate their efforts to disrupt these unlawful activities. One noticeable problem is a lack of legal and technical capacities to cooperate across the borders. Another problem is the mistrust among agencies, with many unwilling to cooperate with their counterparts regionally or internationally. Tackling smuggling networks in their entirety requires improved regional and international cooperation to complement and mutually reinforce national criminal justice responses.

National cooperation and coordination

Because of the complexities involved in investigating and prosecuting the smuggling of migrants, a range of actors need to be involved. The United Nations Smuggling of Migrants Protocol does not prescribe how national agencies should coordinate their roles and responsibilities. However, many States have established inter-agency coordinating bodies or committees to work on smuggling-related issues across their governments. A whole-of-government approach assists not only in developing and implementing policy and strategic responses, but also in achieving operational success. Migrant smuggling is a multifaceted endeavour; therefore, a multidisciplinary approach is recommended, not only at the inter-ministerial level, but also involving cooperation with non-state actors. NGOs, international organizations, and the private sector can support national responses in various initiatives of capacity-building, coordination and the exchange of good practices (Mann, 2018: 116). For example, inviting civil society organizations to participate in operations to address migrant smuggling is essential to protect and assist migrants. It can also contribute to empowering migrants to support government officials in investigating and prosecuting smugglers.

There are significant challenges to achieving effective cooperation between actors, particularly where interests and agendas may not align or may even be opposed.

Inter-agency cooperation

Large-scale investigations may involve several agencies, all of which have responsibility for prosecuting different crimes resulting from, or running in tandem with, migrants smuggling. Cooperation among these institutions should be facilitated at both legal and procedural levels.

Example
Sharing information during the investigation process

Prosecutors and investigators should consult with one another not only when required by law but when advice is needed or could be useful during an investigation. This includes advice or consultation concerning:

  • The admissibility and orders regarding the collection of evidence;
  • The determination of appropriate charges;
  • The assessment of the strength of the case, including the credibility of witnesses;
  • The preparation of the prosecution brief and the gathering of materials that will be required for various post-charge purposes such as bail;
  • The preparation for freezing relevant assets.
Policy Approaches
Establishing an inter-agency coordinating body on migrant smuggling

States will benefit from establishing a national coordinating body to implement the United Nations Smuggling of Migrants Protocol. Such an agency will help with policy development, planning and sharing information on the smuggling of migrants.

  • Situate this agency in the ministry of home affairs or within the most relevant department or agency dealing with border and migration management.
  • Establish the authority of the agency to work on smuggling-related issues across government by coordinating with ministries of foreign affairs, employment, health, education, security and others involved as necessary. All relevant stakeholders, including migration actors, should be aware of any mechanisms in place for multi-agency cooperation, and should understand their own roles and responsibilities with regard to migrant smuggling, as well as the roles and mandates of potential partners.
  • Formalize arrangements with non-state actors through memorandums of understanding (MoU) or other appropriate arrangements to assign them a formal role in coordination structures such as referral mechanisms and in committee structures.
  • Ensure regular meetings of relevant actors to allow for individual cases to be discussed and for budgetary or procedural issues to be addressed in advance of any operation.
  • Put in place mechanisms to come into effect on an ad hoc or informal basis in response to emergency situations such as mass arrivals of smuggled migrants. The United Nations Convention against Transnational Organized Crime (UNTOC) can provide a legal basis for such initiatives.
  • Encourage the agency to build trust among all stakeholders as a crucial component of long-term institutional capacity-building to counter the smuggling of migrants and to protect migrants.

There are many examples of good practice in cooperation against smuggling that demonstrate how different actors, even with different interests and agendas, can be brought together to respond to the smuggling of migrants in a comprehensive, effective and sustainable way.

Good Practice
Ethiopia’s Anti-Human Trafficking and Migrant Smuggling Task Force

Ethiopia’s Anti-Human Trafficking and Migrant Smuggling Task Force coordinates government efforts on the smuggling of migrants and returnees, bringing together government agencies, NGOs and international organizations as well as faith-based organizations. Working groups on specific issues operate within the task force.

Regional and bilateral cooperation and coordination

Several regional processes exist to support the cooperation, collaboration and exchange of information and good practices on countering migrant smuggling, including those flagged in Inter-State policy dialogue. Regional platforms can serve as single points of contact for cooperation to strengthen capacity and cross-border information exchange

Policy Approaches
Regional cooperation practices on migrant smuggling

States can jointly elaborate regional and subregional treaties in line with the UNTOC, United Nations Smuggling of Migrants Protocol and human rights standards.

States can establish cooperative mechanisms to:

  • Confiscate the proceeds of smuggling;
  • Provide assistance to identify, trace and seize assets associated with smuggling;
  • Establish regional mechanisms for judicial processes;
  • Explore sustainable alternatives to migration.

At the cross-border level, States are advised to enter into bilateral arrangements to:

  • Respond to smuggling and protect migrants;
  • Share and exchange information on nationality and residence;
  • Strengthen cross-border investigations;
  • Conduct joint cross-border investigations;
  • Cooperate with non-governmental organizations (NGOs) and civil society organizations (CSOs) (Mann, 2018: 127).

Crucially, bilateral agreements should be informed by a full understanding of root causes and wider trends, so they do not simply divert smuggling routes and the dangers that occur along them.

Read more policy approaches on bilateral, regional and international cooperation mechanisms in Integrated border management systems.

Good Practice
Selected regional organizations coordinating the migrant smuggling response

Bali Task Force on Planning and Preparedness

Following the Southeast Asian Andaman Sea crisis of 2015, in which thousands of migrants were left stranded and hundreds died, affected States came together to acknowledge the failure of their political commitments to effectively result in action. They established the Task Force on Planning and Preparedness to better prepare themselves to effectively respond to the irregular movement of migrants at sea, including movement facilitated by smugglers.

The European Border and Coast Guard Agency

In the European Union, the European Border and Coast Guard Agency (FRONTEX) plays a key role in bringing States and other actors together to address the issue as well as in setting the standards and collecting and disseminating the best practices in countering migrant smuggling.

International cooperation and coordination

Collaboration between origin, transit and destination countries requires mutual commitment, a common and harmonized understanding based on the same legal framework, equal partnerships with a good operational capacity, and, most challengingly, a high level of trust.

Regardless of the agreements existing between States, cooperation in practice can be fraught, as a result of diametrically opposed interests.

The cooperation envisaged by the Protocol is not limited to operational efforts, but also sets out other ways that States can support each other, including through information sharing, technical assistance, joint capacity-building, and in addressing the socioeconomic root causes of migrant smuggling. States that are not party to the Protocol are encouraged nonetheless to use its provisions when entering into agreements, to ensure a common legal understanding.

Judicial cooperation and joint investigation are crucial and must be part of a holistic approach that offers migrants effective alternatives to smuggling for family reunification and access to protection

Policy Approaches
Forms of international cooperation on migrant smuggling

Provisions in the United Nations Convention against Transnational Organized Crime (UNTOC):

  • Extradition (article 16). UNTOC may be used as a direct legal basis for requesting and granting extradition for individuals charged or punished for migrant smuggling offenses.
  • Mutual legal assistance (article 18). UNTOC requires States Parties to afford one another the widest measure of legal assistance in investigations, prosecutions and judicial proceedings in relation to smuggling offenses. Mutual legal assistance requests can be made in order to secure evidence located in a country other than that in which the prosecution takes place, such as requests to take evidence or statements from persons, identify witnesses and suspects, execute search and seizures or transfer prisoners to provide evidence.
  • Joint investigations (article 19). Joint investigations by law enforcement agencies can be a useful tool when more than one State has jurisdiction over the offenses involved or where the offenses are expected to have repercussions in more than one State. They can be established on a bilateral basis or coordinated through international police agencies such as Interpol.
  • Law enforcement cooperation (article 27). Cooperation between law enforcement authorities includes exchanging information and cooperating in conducting inquiries.
  • Information collection and exchange (article 28). Exchanges of information between law enforcement, border control and regulatory agencies is a fast and effective form of informal cooperation. This allows counterparts from different national agencies to swiftly exchange intelligence – without a formal mutual assistance request – on aspects such as embarkation and destination points, the modus operandi of smugglers, document verification and proactive intelligence gathering.

Provisions in the United Nations Smuggling of Migrants Protocol:

  • Cooperation at sea (articles 7 and 8).
  • Information collection and exchange (article 10),
  • Cooperation in border control (article 11[6]) among border control agencies by establishing and maintaining direct channels of communication.
  • Training and technical cooperation to prevent smuggling while respecting rights (article 14).
  • Cooperation in addressing root causes (article 15[c]).

Cooperation in return of smuggled migrants (article 18).

Read more on law enforcement and border cooperation in Chapter Regulating migration: Border management.

Smuggling of migrants at sea

The United Nations Smuggling of Migrants Protocol requires States to cooperate in preventing and countering migrant smuggling by sea, but clarifies that such measures should strictly observe the international law of the sea. Read more on the law of the sea.

Article 8 of the United Nations Smuggling of Migrants Protocol sets out a mechanism to take cooperative measures against the smuggling of migrants by sea.

Policy Approaches
Measures for search and intercept of vessels suspected of transporting smuggled migrants
  • States may request the assistance of other States in suppressing the use of a vessel suspected of engaging in migrant smuggling, irrespective of the maritime zone in which that vessel is located (where the vessel is flying that State’s flag or claiming its registry or, while not flying that State’s flag, has in reality the nationality of that State);
  • States suspecting that a foreign vessel is engaged in smuggling need the prior authorization of the flag State to board and search the vessel;
  • States suspecting that a vessel without nationality is engaged in smuggling can board and search the vessel and take measures in accordance with domestic and international law;
  • Boarding State must ensure the safety and humane treatment of persons on board at all times;
  • States should designate an authority to receive and respond to requests for assistance, including the confirmation of vessel registry, its right to fly its flag and authorization to take appropriate measures; see the United Nations Office on Drugs and Crime (UNODC) cooperation tool, an online directory of competent national authorities for extradition requests and mutual legal assistance.
  • Measures taken at sea should be carried out by warships or military aircraft or by ships or aircraft clearly marked and identifiable as being on government service.
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