Published in January 2019.
This module is a resource for lecturers
The criminalization of smuggling of migrants
Sovereign States have the right to organize and regulate the entry of foreigners in their territory. They may determine that non-nationals or non-residents must comply with certain requirements to legally enter and stay. These restrictions on transnational mobility are not new and have had the effect of creating demand for migrant smuggling services (see Module 5). For example, rules imposed on certain types of immigrants, such as those regulated by the US-Chinese Exclusion Act of 1882, generated a smuggling market along the US-Mexico border involving Chinese nationals trying to re-enter American territory. Likewise, in the 1980's many people attempted to escape East Germany by crossing the Berlin Wall into West Germany, often with the assistance of smugglers. Many of these people were welcomed abroad, following recognition of the persecution or violence they were likely to face in their countries of origin (van Leimpt, 2016).
It was in the 1990s that States decided to address the involvement of organized criminal groups in migrant smuggling. These groups were increasingly taking advantage of refugee movements and flows of irregular migration caused by war, persecution and poverty to earn substantial profits. In December 1998, the United Nations General Assembly established an intergovernmental ad-hoc committee and gave it the mandate of developing a new international legal regime to fight transnational organized crime (A/RES/53/111). In October 2000, with the participation of over 120 States, the ad-hoc committee concluded its work, which culminated in the United Nations Convention against Transnational Organized Crime and its three Protocols, dealing respectively with trafficking in persons, smuggling of migrants and trafficking in firearms. This process was the first serious attempt by the international community to address transnational organized crime. It is noteworthy that migrant smuggling had such a prominent place on the agenda.
It should be noted that, as emphasized in Modules 3 and 4, criminalization of smuggling of migrants (and the criminal justice response to the crime) is only one component of a holistic response, which should also include strategies to prevent the crime, such as through addressing root causes, and protect smuggled migrants. Law enforcement and criminal justice are addressed in these Modules as one part of an effective strategy aimed at countering smuggling of migrants and protecting the rights of those smuggled. In addition, as highlighted in this Module, criminalization of smuggling of migrants targets organized criminal groups and individuals engaging in migrant smuggling for profit.
Detailed information can be found in the following sections:
- UNTOC and the Protocol against the Smuggling of Migrants
- Offences under the Protocol
- Financial or other material benefit
- Aggravating circumstances
- Criminal liability