Published in January 2019.
This module is a resource for lecturers
UNTOC and the Protocol against the Smuggling of Migrants
The core international legal instruments addressing migrant smuggling are UNTOC and the Protocol against the Smuggling of Migrants. As of September 2018 ( Status of Ratification), UNTOC has 189 State parties and the Protocol against the Smuggling of Migrants has 146 State parties. The objective of UNTOC, under article 1, is "to promote [international] cooperation to prevent and combat transnational organized crime more effectively". The supplementary Protocols criminalize conduct additional to that contemplated under UNTOC and set out further specific provisions applying to these crime types.
Article 37 of UNTOC and article 1 of the Protocol against the Smuggling of Migrants explains the relationship between these legal instruments.
Article 37 UNTOC
Article 1 Protocol against the Smuggling of Migrants
The overarching purpose of UNTOC and its Protocols is to effectively combat transnational organized crime, including by strengthening international cooperation. Accordingly, UNTOC focuses on activities that are highly profitable for organized criminal groups. Nonetheless, the crimes established in accordance with UNTOC and its Protocols remain punishable if committed without the involvement of an organized criminal group.
Article 34 (2) UNTOC
(…) The offences established in accordance with articles 5, 6, 8 and 23 of this Convention shall be established in the domestic law of each State Party independently of the transnational nature or the involvement of an organized criminal group as described in article 3, paragraph 1, of this Convention, except to the extent that article 5 of this Convention would require the involvement of an organized criminal group. (…)
Article 4 Protocol against the Smuggling of Migrants
This Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of the offences established in accordance with article 6 of this Protocol, where the offences are transnational in nature and involve an organized criminal group, as well as to the protection of the rights of persons who have been the object of such offences.
In the case of smuggling of migrants, domestic offences should apply even where transnationality and the involvement of organized criminal groups does not exist or cannot be proved.
Legislative Guide for the United Nations Convention against Transnational Organized Crime and the Protocols thereto, Part three, chap. I, para. 20, p. 334.
Organized criminal groups
According to article 2 of UNTOC, an organized criminal group is:
- A structured group of three or more persons;
Article 2 (c) UNTOCA 'structured group' means a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.
- Existing for a period of time;
- Acting in a concerted fashion in order to commit a serious crime as defined in UNTOC;
- With the purpose of obtaining a financial or other material benefit (see further: University Module Series on Organized Crime, Module 1).
From this definition it can be seen that, for instance, a fisherman transporting migrants to facilitate their illegal entry into another country, or two smugglers guiding people through the desert to aid the crossing of a land border, if they are setting on their own without connection to a larger operation, may not constitute an organized criminal group.
It should be noted that national jurisprudence has addressed the definition as understood in certain domestic legal frameworks, as well as providing several indicators regarding the involvement of an organized criminal group in a smuggling venture such as, for example, the indicators listed in the Italian case known as Glauco I (see Box 7).
Case n. 10341/15 R.N. G.I.P. - Glauco I
An organized criminal group is characterized by the following elements: "(i) a bond between the members of (in principle) permanent character or, at least, stable and aimed to continue beyond the commission of specific criminal acts/ventures; (ii) undetermined nature of the criminal program, and; (iii) existence of a certain level of organization that, even though minimal, is adequate to pursuing the criminal objectives settled. In line with the mainstream jurisprudence, there is no need for formal agreements. The requisite of non-determination of the criminal program refers to the number, modalities and objectives of the specific criminal conduct envisaged.
The indicia resorted to in order to demonstrate the [involvement] of an organized criminal group, acting upon a well-structured plan, dedicated to the smuggling of migrants in order to obtain a financial or other material benefit [include]: (i) concentration of migrants in hidden locations in the [country of] departure, (ii) availability of several and different means of transportation to carry out the diverse phases of the travel, (iii) engagement of several men with specific roles (e.g. recruiters, drivers, ship crews, landlords) abiding by rigorous codes of conduct, (iv) systematic exposure of the life and safety of migrants to serious risks given the conditions of the trip, (v) diversified and sophisticated means of communication, (vi) attempts of dissipating traces and deceiving authorities, (vii) structured methodology regarding payments; (viii) availability of a robust network for enabling illegal transit and stay (e.g. accommodation, clothing, transportation abroad, fraudulent passports), (ix) regular character of the activities, that lead the suspects and their associates to refer to it often as 'work'".