Definition of the crime

Article 3(a) of the United Nations Smuggling of Migrants Protocol (also discussed in International law and principles in this chapter) defines the smuggling of migrants. It invites States to align their definition of the crime with the act and purpose laid out in Table 2.

Table
Table 2. Elements of the crime of migrant smuggling
ACT PURPOSE
  • The procurement of illegal entry of a person, into a State of which that person is not a national or resident
  • To obtain, directly or indirectly, a financial or other material benefit (this can include non-financial gratification such as work or sexual benefits)

Article 6(1) of the United Nations Smuggling of Migrants Protocol also requires States Parties to criminalize the acts shown in Table 3.

Table
ACT PURPOSE
  • Offences related to Fraudulent documents (producing, procuring, providing or possessing of fraudulent travel or identify documents for the purpose of migrant smuggling)

 

  • The enabling of illegal stay for financial or other material benefit
  • To obtain, directly or indirectly, a financial or other material benefit

The humanitarian exemption

While the United Nations Smuggling of Migrants Protocol requires a financial or other material benefit as an element to establish the crime, some States do not include this in their national definition. This is a risk for humanitarian actors who help migrants to cross borders irregularly for no financial or material gain. The travaux preparatoires – the official record of the negotiations – for the UNTOC and the Protocol clearly state the intention to exclude the activities of those who provide support to migrants for humanitarian reasons or on the basis of close family ties.

Good Practice
Application of the humanitarian exception clause by the French Supreme Court

A French citizen (A. X.) was charged with facilitating irregular migration when he assisted four individuals (two Malian and two Libyan nationals) by transporting them in his mother’s car to the train station in Fontan/Saorge, France. The defendant is a member of a humanitarian association that specifically assists migrants in need without asking for any material or financial decompensation. Many members had already been charged and convicted for facilitating irregular migration, including A. X. who was sentenced to three months suspended imprisonment by the criminal court in Nice. The Court of Cassation acquitted the defendant from all charges, as the lower courts had misapplied the humanitarian exception clause provided for in article L. 622-4, No. 3 CEDESA.

Source

UNODC SHERLOC Portal

To Go Further
Policy Approaches
Criminalize migrant smuggling

 

  • Include all the elements of the crimes and related offences in national legislations, and provide for effective punishment.
  • Align national law with international law with regard to facilitating a person’s illegal border crossing without receiving any material or financial benefit. Such instances should not be considered smuggling, and as such should not be criminalized.
  • If the financial element is not included in the national definition of smuggling, enshrine a humanitarian exemption to avoid prosecution of humanitarian actors or family members.
Scope of the UN Migrant Smuggling Protocol

A transnational crime committed by an organized criminal group

By its very definition, migrant smuggling is a transnational offense, since it involves the illegal crossing of international borders. However, many activities enabling smugglers to operate – such as the forgery of passports or the provision of temporary accommodation – take place entirely within a nation, and are committed by entrepreneurial individuals not always part of formal criminal groups. The Protocol has been interpreted to be applied in a broad manner (see paragraph 20 of the UNODC Legislative guide for the implementation of the protocol).

The most important criminal targets, whose prosecution will have the most disruptive impact, are the organizers and directors who oversee the multiple components of smuggling ventures, but who may not be involved in the physical commission of the crime. It is criminals in this category who often gather the most profit from the crime but face the lowest risk of being brought to justice. 

Criminalization of the attempt to commit the crime and participation in the crime

Policy Approaches
Criminalization of accomplices
  • Criminalize not only the smuggling of migrants, but also: attempts to smuggle; participation as an accomplice; and the organization or directing of other persons to commit the crime (article 6[2]).
  • Extend criminalization to those who participated as aides or facilitators.
  • Extend criminal liability to legal persons such as corporations (articles 5 and 10).
Good Practice
Criminalizing migrant smuggling attempts in the Dominican Republic

In 2011, charges were filed in the Dominican Republic against an alleged migrant smuggler. The suspect had rowed migrants in a boat from the port of Haina in the Dominican Republic out to sea, where they were transferred to a barge to be transported onward to the United States. The migrants were charged significant sums of money.

The suspect was alleged to have left the Dominican Republic with an accomplice and three migrants to rendezvous with a barge bound for Miami. Before reaching the barge, the rowing boat capsized. The suspect and his accomplice were able to swim back to the coast of the Dominican Republic, but the migrants all drowned. The suspect, his accomplice and their boat were subsequently found by the coast guard. Both were arrested; while awaiting trial, the suspect jumped bail. Two years later he was arrested by police in Italy, and extradition proceedings were started by the Dominican Republic. Although there was no bilateral treaty between the Dominican Republic and Italy, extradition was granted under article 16(4) of the United Nations Convention against Transnational Organized Crime (UNTOC). Although the smuggling attempt had been unsuccessful, the suspect and his accomplice were charged with intention to enable illegal entry for financial or material benefit. Additionally, despite the fact that no borders had actually been crossed, the intention to do so was sufficient for the offence to be deemed a transnational crime. Both were convicted and sentenced to 15 and 5 years, respectively.

The interesting points were convictions on the basis of conspiracy; transnational crime without crossing borders; and extradition using UNTOC, in the absence of an extradition treaty. As these elements had been integrated into domestic legislation, the prosecution was successful

Non-criminalization of smuggled migrants

The United Nations Smuggling of Migrants Protocol criminalizes the actions of the smuggler, not the migrant.

The United Nations Smuggling of Migrants Protocol further provides for the non-liability of smuggled migrants for the crime of migrant smuggling

Article / Quotes
non-liability of smuggled 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.

 

Source

article 5, United Nations Smuggling of Migrants Protocol

At the same time, the United Nations Smuggling of Migrants Protocol was drafted in such a way as to not interfere with how States Parties manage migration and address irregular migration. This intention is made explicit by article 6(4) of the United Nations Smuggling of Migrants Protocol:

Article / Quotes

Nothing in this Protocol shall prevent a State Party from taking measures against a person whose conduct constitutes an offence under its domestic law.

The Protocol does not require States to remove any penalties that it applies to migrants who enter or reside irregularly in a country. Smuggled migrants can therefore be held liable for immigration and other offences as laid out in domestic law. This approach has recently been restated in the Global Compact for Migration, objective 9 of which reads: “We further commit to ensure that 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”.

Nonetheless, the Protocol encourages States to ensure that smuggled migrants are adequately screened, and that any needs of protection and assistance are identified. (For more, see Protection of the rights of smuggled migrants).

Policy Approaches
Non-liability of smuggled migrants in the crime of smuggling
  • Smuggled migrants should not be penalized for the crime of migrant smuggling
  •  Smuggled migrants may be prosecuted according to other violations of national law, such as migration-related offences.
  • Develop mechanisms to screen smuggled migrants to identify any protection and assistance needs.

States may seek the cooperation of smuggled migrants in order to investigate and prosecute smugglers, particularly in cases of organized crime where the leaders are hidden.

Policy Approaches
Cooperating with smuggled migrants to disrupt organized crime
  • States are encouraged to seek the cooperation(art 26 UNTOC) of smuggled migrants to help to:
    • Investigate and prosecute smugglers;
    • Disrupt organized crime;
    • Identify the routes and modus operandi of smugglers.
  • Ensure the effective protection of witnesses – and those close to them – from retaliation or intimidation by the organized group (article 24, UNTOC).
Criminalize associated crimes

Due to its very high profitability, the smuggling business is often proposed by organized criminal groups as one part of their criminal portfolios (Read more on understanding associated crimes in Understanding and addressing the supply side of migrant smuggling). An organized criminal group is defined by article 2 of the United Nations Convention against Transnational Organized Crime (UNTOC), the parent convention of the United Nations Smuggling of Migrants Protocol. 

An organized criminal group is defined by article 2 of the United Nations Convention against Transnational Organized Crime (UNTOC), the parent convention of the United Nations Smuggling of Migrants Protocol:

Glossary
organized criminal group

A structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit

The domestic laws of many States, with regard to the smuggling of migrants, do not necessarily include the involvement of an organized criminal group. However, it is the main focus of the United Nations Smuggling of Migrants Protocol and UNTOC. This is because investigating, following and prosecuting the other crimes committed by organized criminal groups helps to dismantle the criminal group and therefore reduces the incidence of smuggling of migrants as well.

Policy Approaches
Criminalize related crimes committed by organized groups
  • Criminalize the act of participating in an organized crime group (article 5, United Nations Convention against Transnational Organized Crime [UNTOC]). In order to be able to prosecute such acts, gather evidence on:
    • The involvement of 3 or more persons acting as a structured group;
    • The existence of this group for “a period of time”
    • The “acting in concert”, that is, in a coordinated way.
  • Criminalize the act of laundering the proceeds of migrant smuggling (article 6, UNTOC):
    • Establish a regulatory and supervisory regime for banks and non-bank financial institutions;
    • Develop the capacity to detect and monitor the movement of cash across borders, as well as the capacity to trace money within the territory;
    • Promote international cooperation among law enforcement and financial regulatory authorities.
  • Establish legislation that allows the confiscation of the proceeds made from smuggling (articles 12 and 14, UNTOC).
  • Criminalize actions that serve to corrupt public officials, such as offering bribes, and also criminalize accepting such offers (article 8, UNTOC):
    • Adopt legislative, administrative or other effective measures to promote integrity and to prevent, detect and punish the corruption of public officials.
    • Ensure that authorities can take effective action to prevent, detect and punish the corruption of public officials. This should include providing such authorities with adequate independence to deter any other groups from exerting inappropriate influence on their actions.
Intelligence gathering techniques

In order to prosecute migrant smuggling, investigations into the actions of smugglers must be led by accurate and timely intelligence. Government policies should reflect the need for such intelligence, and government should provide the resources necessary for information to be effectively collected and analysed. Intelligence can be developed nationally at strategic and tactical levels. As the crime of migrant smuggling is committed across several jurisdiction, law enforcement cooperation is key to dismantle the criminal networks involved. (Read more policy approaches on intelligence gathering and the role of technology in Chapter Regulating migration: Border management.)

Key messages
  • All elements of the crime of migrant smuggling, as well as related offences and effective punishment, should be included in national legislation.
  • The objective of the United Nations Smuggling of Migrants Protocol is to target organized criminal groups who are involved in the smuggling of migrants for significant profit. It is important to keep this in mind when investigating and prosecuting the crime.
  • Attempted migrant smuggling, and being an accomplice to migrant smuggling, should be criminalized. However, the main goal of legislation and policy should be to dismantle the criminal network engaged in migrant smuggling, and to prosecute those at the top of the network.
  • Legal entities such as corporations that are involved in migrant smuggling and related crimes should also be prosecuted.
  • The commission of an assault or other crimes during a migrant smuggling operation is not simply an aggravating factor; it is an offence in its own right, and should be investigated as if it had occurred separately.
  • Where aggravating circumstances are present in the smuggling process, punitive measures should be correspondingly higher, depending on the severity of aggravation.
  • Smuggled migrants are not liable for the crime of smuggling.
  • Seek the cooperation of smuggled migrants when building evidence to prosecute the crime of smuggling.
  • Evidence collected concerning crimes committed by organized criminal groups, even when those crimes are not the smuggling of migrants, is nonetheless crucial to reducing the incidences of migrant smuggling.
  • Establish financial tracking systems, strengthen financial investigations and tackle the corruption of public officials, in order to work towards dismantling the criminal networks involved in migrant smuggling.
  • Financial sanctions such as confiscating the gains of the crime are effective mechanisms that deter organized criminal groups from offering smuggling services
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