Published in January 2019.
This module is a resource for lecturers
This University Module Series on Trafficking in Persons and Smuggling of Migrants provides an overview of different forms of smuggling of migrants and trafficking in persons and their impact on the human rights of migrants.
This Module addresses the smuggling of migrants as a specific crime type. It examines its scope, constituent elements, aggravating circumstances and other related matters such as jurisdiction and criminal liability. It further explains subjects that are often misconstrued, including the humanitarian exemption and non-criminalization of smuggled migrants. Finally, it highlights the relationship between migrant smuggling, other types of criminal conduct and irregular migration. An understanding of smuggling of migrants as a concept is essential to teaching the further Modules in this series.
This Module should be adapted to the context of the country it is being taught in, especially the national legal regime. It focuses on the legal framework established by the United Nations Convention against Transnational Organized Crime (UNTOC) and its supplementary Protocol against the Smuggling of Migrants by Land, Sea and Air (Protocol against the Smuggling of Migrants). This approach is useful for lecturers teaching in countries that have passed specific legislation on smuggling of migrants and/or are parties to these two instruments. It is, however, also useful for lecturers teaching in countries that are not parties to UNTOC and the Protocol against the Smuggling of Migrants, and/or have not adopted specific legislation on smuggling of migrants. For the latter, the contents of this Module may be of assistance and can serve as a reference point for thinking about legal responses to migrant smuggling. For the former, it is important to take into account and encourage students to critically analyse existing differences between national legislation and the provisions of the Protocol against the Smuggling of Migrants.
This Module begins by briefly explaining the recent approach of international law towards smuggling of migrants as a crime. Next, it describes the central role of UNTOC and the Protocol against the Smuggling of Migrants in criminalizing migrant smuggling. The Module explains the elements of offences under the Protocol and aggravations to those offences. The lecturer should delve comprehensively into the importance, purpose and implications of the "financial or other material benefit" element. The link between this element and organized crime should be emphasized.
Where possible, national laws should be critically assessed in light of UNTOC and the Protocol against the Smuggling of Migrants, in order to generate debate regarding the actual or potential implementation gaps of the international framework and their consequences. A comparative approach is strongly recommended, so as to provide students with a realistic overview of the current global situation. Thus, in addition to exploring legislation in the country examined, the lecturer should, where appropriate, highlight alternatives followed in other jurisdictions. This can lead to critical debate on the merits of different legislative approaches in different jurisdictions. In particular, the exclusion of conduct not motivated by financial or other material gain from the scope of the Protocol should be contrasted with its actual implementation in national legislation. Further, national legislation and jurisprudence should be assessed in light of article 5 of the Protocol, which mandates that migrants must not face prosecution for having been the object of offences under the Protocol. In some jurisdictions, migrants are also exempted from criminal responsibility for minor offences committed during or in relation to the smuggling venture. In this respect, the merits of different approaches can be debated.
The lecturer is encouraged to (depending on the discipline taught) critically discuss the jurisdictional and liability requirements in both international and national legal frameworks. Special attention should be drawn to the responsibility of public officials (see University Module Series on Integrity and Ethics, Module 13) or persons committing migrant smuggling offences who take advantage of positions of authority. It is recommended that these matters be addressed using examples, which may be taken from case law.
Through this Module, lecturers will lead students to clearly distinguish between migrant smuggling and irregular migration (see the E4J Teaching Guide on Trafficking in Persons and Smuggling of Migrants).
- Define the concept of smuggling of migrants
- Recognize the elements of the basic migrant smuggling offence and related offences under the Protocol against the Smuggling of Migrants (enabling illegal stay and document fraud offences)
- Understand the meaning of 'organized criminal group'
- Understand the meaning of 'financial or other material benefit'
- Understand the 'humanitarian exemption'
- Understand the possible relationship between smuggling of migrants and other crime types, and distinguish smuggling of migrants from irregular migrants