Published in January 2019.
This module is a resource for lecturers
Article 6 Protocol against the Smuggling of Migrants
(…) 2. Each State Party shall also adopt such legislative and other measures as may be necessary to establish as criminal offences:
(a) Subject to the basic concepts of its legal system, attempting to commit an offence established in accordance with paragraph 1 of this article;
(b) Participating as an accomplice in an offence established in accordance with paragraph 1 (a), (b) (i) or (c) of this article and, subject to the basic concepts of its legal system, participating as an accomplice in an offence established in accordance with paragraph 1 (b) (ii) of this article;
(c) Organizing or directing other persons to commit an offence established in accordance with paragraph 1 of this article. (...)
In addition to primary liability, the Protocol against the Smuggling of Migrants specifically requires that States parties provide for the criminal liability of those acting as accomplices or organizing or directing the smuggling process. In most States, these forms of liability will already be integral to the legal system and will apply naturally to smuggling of migrants offences as well.
In several cases, defendants have argued that passive or minor roles in smuggling operations remove the conduct from the realm of smuggling of migrants or otherwise lessens criminal culpability. Courts have often disagreed with this position.
HKSAR v C.P.-K
The defendant's participation in the conspiracy to facilitate the smuggling of migrants amounted to wilfully turning a blind eye - in his capacity as a ground service agent - to the fact that certain passengers (at least two) were not the same persons as those identified in the respective boarding passes. (…)
Even though there was no clear evidence on the positive steps, if any, taken by the defendant pursuant to the illegal agreement in the two incidents that led to the boarding of unauthorized passengers and in which the defendant was present, by failing to perform his duties, the defendant played an instrumental role in the successful implementation of the conspiracy. (…)
The defendant was not a mastermind of the smuggling scheme nor was he at the core of it. He might have just succumbed to the circumstances rather than taking an initiative to join. However, for such an illegal scheme to succeed, it needs people like the defendant. Deterrence is hence necessary also in respect of less active individuals as the defendant.
The Protocol against the Smuggling of Migrants prescribes that attempts are to be punished. No distinction is required between the severity of the sentence imposed for attempted and completed offences. This matter will depend on the specific nature of the legal system. For instance, in Spain, smuggling of migrants is not a result crime, meaning it will be deemed completed if the acts necessary to accomplish the desired criminal result were carried out, even though the result might never have been achieved, for example because a strong law enforcement operation prevented smuggled migrants from illegally entering the country by sea.
Indeed, in some cases, the modus operandi of smugglers is to take migrants at sea relatively close to land so that authorities are alerted and, under the duty to aid persons in distress at sea, rescue the migrants. These situations could be conceived of as migrant smuggling attempts because the smugglers did not 'directly' cause the illegal entry of migrants. However, it is also fair to argue that the entire smuggling process (including the use of national authorities to achieve the intended criminal result) be considered under the scope of the completed offence of smuggling of migrants. For other examples of cases in which smugglers were charged with attempt to facilitate the irregular entry of stay of migrants please see, for example, an Indonesian case available on SHERLOC Case Law Database on the Smuggling of Migrants.
Article 10 of UNTOC requires the adoption of measures establishing the liability of legal persons (such as corporations and charitable organizations) for offences, including smuggling of migrants. According to the same provision, liability may be criminal, civil or administrative (see Module 4 of the University Module Series on Organized Crime). It is important to establish the liability of legal persons because they are often used to shield natural persons from liability and can play a significant role in the overall smuggling process (for example, travel agencies serving as intermediaries for organized criminal groups). Sanctions may vary considerably, ranging from payment of fines to permanent closure of businesses. The critical issue is to ensure that legal persons are subject to effective, proportionate and deterrent criminal or non-criminal sanctions, including of a pecuniary nature (article 11(1) of UNTOC).
Responsibility of commercial carriers - article 11 (2)-(4) Protocol against the Smuggling of Migrants
2. Each State Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial carriers from being used in the commission of the offence established in accordance with article 6, paragraph 1 (a), of this Protocol.
3. Where appropriate, and without prejudice to applicable international conventions, such measures shall include establishing the obligation of commercial carriers, including any transportation company or the owner or operator of any means of transport, to ascertain that all passengers are in possession of the travel documents required for entry into the receiving State.
4. Each State Party shall take the necessary measures, in accordance with its domestic law, to provide for sanctions in cases of violation of the obligation set forth in paragraph 3 of this article. (...)
Article 11(2)-(4) of the Protocol against the Smuggling of Migrants requires States parties to establish the responsibility of commercial carriers for verifying the documents of passengers and reporting to authorities that migrants travelled, or attempted to travel, without the required documents to enter a State. As highlighted in the UNODC Model Law against the Smuggling of Migrants, there should not be liability if:
- The person responsible for checking the documents believes on reasonable grounds that the documents in the possession of the traveller were the identity and travel documents required for lawful entry into the country concerned;
- The traveller possessed the required documents when he or she boarded the means of transport;
- The entry into the country of destination occurs because of circumstances beyond the control of the person responsible for the verification of documents;
- The entry of irregular migrants into the country concerned resulted from rescue at sea or the fulfilment of obligations or duties under national or international law (pp. 59-60).