Published in January 2019.
This module is a resource for lecturers
Investigative and prosecutorial multidisciplinary approaches
The clandestine nature of smuggling of migrants means that investigations are usually only triggered when specific incidents come to the attention of authorities. However, it is also important to bear in mind that, given known typologies of migrant smuggling ventures (see Module 5), police and prosecutorial authorities might very well be in a position to identify suspicious patterns. Where identified, these may justify proactive measures. For instance, knowledge that the number of irregular migrants of a certain nationality, departing from a coastal State, has increased significantly is likely of interest to police, even if no vessels are intercepted transporting such migrants. In such a case, police may closely monitor sea traffic in identified routes/areas, raise informal contacts with law enforcement in the country of origin or transit and continue to gather intelligence.
Investigations into smuggling of migrants pose numerous challenges. First and foremost, the "commodity" being smuggled are human beings. The preservation of life and safety of those involved (not only smuggled migrants) must be ensured (see Module 2). Furthermore, the transnational character of this crime means that part of the relevant evidence is likely to be found abroad. This means that cooperation between States is essential. However, States might be unable or unwilling to cooperate (see Module 11 of the University Module Series on Organized Crime). Other challenges include the reluctance of witnesses, who may fear retaliation, to testify against their smugglers and difficulties in adapting to changes in organized criminal groups' modus operandi (for example, use of Hawala payment systems rather than formal banking systems) (see Modules 1, 2, 3, 5 and 7 of the University Module Series on Organized Crime).
Challenges in smuggling investigations and prosecutions (not exhaustive)
The specific challenges and characteristics posed by the smuggling of migrants require robust and tailored investigative and prosecutorial approaches to address the difficulties associated with this crime type. The multidisciplinary approach is one promising methodology. It includes close cooperation between States and State agencies, as well as with other relevant stakeholders such as NGOs and the private sector (see section on ' Non-Governmental Organizations'). Internet service providers and social media are a good example of the latter ( UNODC, Working Group on SOM, 2018). As illustrated in Boxes 2 and 3, the increasing use smugglers make of social media has led to calls for social media platforms to combat such practices. The overarching goal is to turn migrant smuggling from a low risk, high profit business into a high risk, low profit undertaking for smugglers.
Smugglers in Libya post abuse of migrants on social media for ransom
People smugglers and criminal gangs in Libya are using social media to broadcast the abuse and violence they inflict on African migrants in their captivity and demand ransoms from their families back home, according to the United Nations. In a video posted on Facebook, hundreds of emaciated Somalis and Ethiopians, including several children, are seen huddled in a concrete room in an unknown location in Libya. The migrants and refugees being filmed say they have been beaten, tortured and held in cells without food, and that their parents and relatives have received video clips via social media asking for up to $10,000 to spare them from being killed. "They broke my teeth … they broke my hand … this stone has been put on me for the last three days," says one man in the video posted last week, explaining how his captors placed a concrete block on his back as a punishment after his family refused to pay $8,000. At least 20,000 migrants are being detained in Libya, the main gateway for those attempting to reach Europe by sea, according to the International Organization for Migration (IOM). Many are held and extorted for money by smugglers and gangs, and rising numbers are traded - in what they call slave markets - for forced labor and sexual exploitation, the U.N. agency says.
"The IOM condemns the way that criminal gangs use social media in their shocking abuse of people held against their will and to extort money from their families back home," said Mohammed Abdiker, IOM director of operations and emergencies. "This is a global problem where a smuggler or a criminal gang can easily use digital platforms to advertise their services, entice vulnerable people on the move and then exploit them and their families," Abdiker said in a statement. Several Senegalese migrants who were flown home by the IOM from Libya last week told the Thomson Reuters Foundation of the 'hell' they endured in detention, ranging from being beaten and starved to watching their peers die of hunger and illness. The voyage from Libya across the Mediterranean to Italy - often on flimsy boats run by people smugglers - has become the main route to Europe for migrants from Africa after a European Union crackdown last year on sea crossings from Turkey. Smugglers in increasingly lawless Libya are packing record numbers of migrants onto boats, with sea arrivals to Italy so far this year - more than 61,000 people - up 35 percent on 2016.
Africa News, 16 June 2017
U.N. calls on social media giants to control platforms used to lure African migrants
The U.N. migration agency called on social media giants on Friday to make it harder for people smugglers to use their platforms to lure West African migrants to Libya where they can face detention, torture, slavery or death. The smugglers often use Facebook to reach would-be migrants with false promises of jobs in Europe, International Organization for Migration (IOM) spokesman Leonard Doyle said. When migrants are tortured, video is also sometimes sent back to their families over WhatsApp, as a means of extortion, he said. "We really (...) ask social media companies to step up and behave in a responsible way when people are being lured to deaths, to their torture" Doyle told a Geneva news briefing. There were no immediate replies from Facebook or WhatsApp to requests by Reuters for comment.
Hundreds of thousands of migrants have attempted to cross the Mediterranean to Europe since 2014 and 3,091 have died en route this year alone, many after passing through Libya. This year, the number of migrants entering Europe is 165,000, about 100,000 fewer than all last year, but the influx has presented a political problem for European countries. IOM has been in discussions with social media providers about its concerns, Doyle said, adding:" And so far to very little effect. What they say is 'please tell us the pages and we will shut them down'. "It is not our job to police Facebook's pages. Facebook should police its own pages," he said. Africa represents a big and expanding market for social media, but many people are unemployed and vulnerable, he said. "Facebook is pushing out, seeking market share across West Africa and pushing out so-called free basics, which allows ... a 'dumb phone' to get access to Facebook. So, you are one click from the smuggler, one click from the lies," he said. Social media companies are "giving a turbo-charged communications channel to criminals, to smugglers, to traffickers, to exploiters", he added. Images broadcast by CNN last month appeared to show migrants being auctioned off as slaves by Libyan traffickers. This sparked anger in Europe and Africa and highlighted the risks migrants face. Doyle called for social media companies to invest in civic-minded media outreach and noted that on Google, pop-up windows appear if a user is looking at pornography images, to warn of danger or criminality. (…)
Reuters, 8 December 2017
The purpose of the multidisciplinary approach is to map out the journeys migrants take from their homes to destination countries and identify effective measures to disrupt migrant smuggling ventures. The measures are diverse in nature and include criminal law, as well as administrative, tax-related and private-law instruments. This Module focuses on criminal law responses only, while Module 4 provides an overview of non-criminal law responses.
Within the multidisciplinary approach, it is important to understand the 'barrier model' (European Migration Network & Dutch Ministry of Security and Justice, 2016, p. 12). Smuggling of migrants is, in many respects, a business. It is based on a business model, composed of several phases, whereby the main purpose is to maximize smugglers' profit. To counter migrant smuggling, barriers should be created to disrupt the business of migrant smugglers at various stages of the process. For instance, recruitment efforts by smugglers in refugee camps or reception centres should be prevented by competent State authorities. As private transportation is often used for migrant smuggling (for example, buses, taxis and trucks), the creation of strong disincentives to service providers, through administrative or criminal sanctions, may help counter smuggling operations. A case of utilization of private means of transport for migrant smuggling is illustrated in the decision below:
Decision no. 108/2013
The defendant was accused in Germany of membership in an organized criminal group and facilitation of illegal entry, with the purpose of obtaining a financial benefit thereby. Specifically:
The multidisciplinary approach is to be applied within law enforcement itself. For instance, anti-smuggling units should work closely together with other relevant units, such as those targeting corruption and money-laundering, as these are crimes often associated with migrant smuggling. Given the possible linkages between smuggling and trafficking in persons, it is important to make sure that anti-smuggling and anti-trafficking police sections, where they exist and operate separately, work together as appropriate (see Module 11).
Smuggling of migrants generates considerable profits (see Module 5). As such, anti-migrant smuggling police units must work closely with financial intelligence units (FIUs) to disrupt the cash flow of smuggling operations (see further section on '
Financial investigations'). Finally, cybercrime units should also be involved in combatting migrant smuggling, due to the specific expertise such units can bring to investigations (see Module 14).
Figure 1: A holistic approach to law enforcement
It is important to bear in mind that smuggling of migrants is a crime that poses challenges in terms of collection of evidence. Two considerations emerge here:
- The same holistic approach advocated in respect of competent police units is pertinent when considering investigative techniques and means of collecting evidence. As explained in the section on ' Testimonial evidence', obtaining testimonies should not preclude the gathering of documentary or expert evidence. Furthermore, feasible, justified and available techniques should be employed to gather evidence, including, inter alia, electronic and physical surveillance, covert operations and financial investigations. (See article 20 of the United Nations Convention on Transnational Organized Crime (UNTOC) regarding special investigative techniques).
- It may be necessary to focus on crimes other than migrant smuggling when prosecuting organized criminal groups. While it is important to address smuggling itself, there are inherent difficulties in collecting evidence, proving the elements of the crime and carrying out successful prosecutions of smugglers, especially high-level organizers. Criminal justice actors may pursue other crimes connected to an organized criminal group involved in smuggling, such as money-laundering or obstruction of justice, where prosecutions of these crimes are more likely to be successful. Ideally, of course, perpetrators should be prosecuted for all offences committed (See Module 9 of the University Module Series on Organized Crime) to reduce the ability of organized criminal groups to act with impunity.
Case N. 3267/04
In this case, there were allegations that a vessel that had rescued 37 migrants in danger at sea had engaged in migrant smuggling, notably by patrolling international waters in search of migrants adrift. In acquitting the defendants, the Court of Agrigento considered the route taken by the vessel to be of particular importance in assessing whether there had been the intent of facilitating illegal entry in Italy. In this respect, the Court took into account the data available through Data Voyage Recording, a type of "black box" of ships and vessels that allows reproducing the itinerary taken thereby. It showed a pattern of movement consistent with a mal-functioning vessel undertaking tests of navigability and technical reliability rather than taking journeys to look for migrants at sea. Interestingly, the Court also took into account, as documental evidence, several videos and reports made by journalists on board the vessel, including the film recordings aimed at preparing a documentary.
The following cases, available in the SHERLOC Case Law Database on Smuggling of Migrants, provide examples of the use of different investigative techniques:
- Case No. 1:13-CR-117_Indictment by Grand Jury (United States) - covert operations
- United States of America v. NBL et al - covert operations
- Proc. nr. 615/2017 DDA R.G.N.R (Italy) - electronic and physical surveillance
- Resolución 59/2015 (Spain) - electronic and physical surveillance
Given that law enforcement bodies do not have unlimited resources, it is important to assess how other public entities can assist in combatting migrant smuggling. A clear example is that of workplace inspectors, who can identify and refer situations deemed suspicious to law enforcement, such as the presence of irregular workers. The possible involvement of organized criminal groups can then be investigated.
In the Republic of Maldives, immigration officers often accompany officials of the workplace inspectors on duty visits. While Maldivian workplace inspectors do not hold an investigative mandate, as a matter of practice, they do refer suspicious situations to the Immigration Office that will engage the criminal police and Public Prosecutor Office, as appropriate.
In the context of a multidisciplinary approach to the investigation and prosecution of migrant smuggling, it is also important to explore avenues through which specialized bodies, regional and international organizations and entities can assist (see Boxes 29-31).