UNODC launched the Issue Paper: The Concept of "Financial or Other Material Benefit" in the Smuggling of Migrants Protocol on the last day of the twenty-sixth session of the Commission on Crime Prevention & Criminal Justice, which took place in Vienna, from 22 to 26 May 2017.
"Financial or other material benefit" is the purpose of migrant smuggling. It is the reason behind the growing involvement of organized criminal groups in conduct that often puts the lives of vulnerable migrants in great jeopardy. The financial or other material benefits associated with migrant smuggling are fuelling a trade that turns human suffering and resilience against unfair odds, into enormous and unscrupulously procured profits. For these reasons, this critical element of the international legal definition was prioritized for study. Migrant smuggling is not always understood in accordance with the definition set out in the Smuggling of Migrants Protocol, and in many cases it is not distinguished from the phenomenon of facilitated illegal entry with no benefit motive, an act that falls beyond the scope of the Protocol.
The framework provided by the Organized Crime Convention and the Smuggling of Migrants Protocol aims at supporting States collectively to address the involvement of organized crime in the facilitation of irregular migration, which manifests itself through the financial or other material benefit element. Smuggling of migrants has become a very profitable business generating significant proceeds that can be disrupted by "following the money", as for other forms of organized crime. Dismantling organized smuggling networks and bringing top-level organizers to justice requires political will, prioritization of resources, concerted efforts as well as a common understanding and very solid judicial cooperation along smuggling routes to also ensure that the rights of migrants are protected.
Developed through the consultation of over 100 experts in 13 countries (Australia, Canada, Germany, Greece, Indonesia, Italy, Malaysia, Mexico, Morocco, Sri Lanka, Tunisia, the United Kingdom, the United States of America) to collect their views on the international legal framework along with the way their own national legislation and case law address migrant smuggling, the findings of the paper were further discussed with practitioners from the participating countries and other experts during an expert group meeting. The paper systematically examines:
- whether the definition or criminalization of migrant smuggling at the national level includes a notion of benefit made from the facilitation of illegal entry,
- whether a humanitarian clause excludes persons helping irregular migrants for altruistic reasons,
- what is considered a form of payment in smuggling cases,
- how is the organized criminal group / network dimension addressed,
- whether these aspects hinder / assist in evidence gathering and judicial cooperation.
UNODC will continue working closely with States Parties to the Smuggling of Migrants Protocol to strategically sharpen criminal justice efforts against the serious and profit-driven crime of migrant smuggling, while protecting the rights of smuggled migrants, including through the Working Group on the Smuggling of Migrants and the Conference of the Parties to the United Nations Convention on Transnational Organized Crime. To that end, it is hoped that this Issue Paper will be seen as the start of ongoing and determined collaboration to better understand the importance of the role that "financial or other material benefit" plays in driving organized smuggling, and how the efforts of States and the international community can be harnessed towards combating it.
The Issue Paper series falls under the Global Programme against the Smuggling of Migrants, aiming to facilitate evidence-based decision-making through increased availability of substantive analysis and research to support States implement the Smuggling of Migrants Protocol.
The study and the development of the Issue Paper was made possible thanks to the support of the Government of Switzerland.
This Paper will form the basis of the eponymous 2017 Working Group's background paper (background paper to be published here).