Understanding and sharing States' approaches to prosecuting smuggling of migrants: the role of UNODC Case Law Database on Smuggling of Migrants

The smuggling of migrants is an international crime that has been the subject of much discussion and attention around the world. Yet, prosecution of migrant smuggling cases remains poorly documented at the international level, often leaving open the question of how practitioners use their domestic legislation to tackle migrant smuggling and what, if any, are the characteristics of successful prosecutions.

As the guardian of the Protocol against the Smuggling of Migrants by Land, Sea and Air (Smuggling of Migrants Protocol) supplementing the United Nations Convention against Transnational Organized Crime, UNODC has been working for several years to increase the visibility of successful prosecutions and, at the same time, to raise awareness of the realities of this crime, including the involvement and modus operandi of organised criminal groups.

To this end, the UNODC Case Law Database on Smuggling of Migrants aims to address the persistent lack of prosecution of smugglers by improving knowledge of prosecution practices and legislation against the smuggling of migrants. A few years after its inception, the database now includes nearly 800 cases from 43 jurisdictions, which can be cross-referenced to other forms of criminal conduct and national legislation through SHERLOC, the largest global information sharing portal on crime.

To capitalise on the wealth of information, UNODC organized a 3-day expert group meeting from 27 to 29 November 2018 to review the work undertaken to date on collecting and analysing case law, legislation and other related legal and judicial data on the smuggling of migrants; to assess the usefulness of the database and to identify potential secondary tools to be developed to further guide the work of practitioners.

Experts from international and regional organizations (International Organization for Migration, Eurojust, EU Fundamental Rights Agency, International Centre for Migration Policy Development), academics (University of Bologna and Queensland University), as well as practitioners from Egypt, Ethiopia, Indonesia, Mexico and Niger, debated practical issues related to the collection and use of case law and topical challenges, such as the conflation of this crime with the facilitation of illegal entry, the confusion between trafficking in persons and smuggling of migrants and addressing the involvement of organized crime in smuggling with the appropriate means. In order to promote the effective implementation of the Protocol, based on a common understanding of the smuggling of migrants as a form of organized crime, participants recommended highlighting good practices in combating smuggling of migrants from the cases in the database by developing secondary products, such as issue papers or legal briefs, on practices that have had a significant disruptive impact on the activities of an organized criminal groups involved in migrant smuggling, and on showing how the use of migrants as witnesses, rather than criminals affects investigations and prosecutions.

With 147 States parties to the Smuggling of Migrants Protocol to date, most have yet to ensure that their national approaches to combating the smuggling of migrants not only fulfill the obligations, but also reflect the spirit of these legal instruments. On the basis of expert recommendations collected during the meeting, UNODC will aim to improve the database to enable judges, prosecutors, policymakers, legal practitioners, researchers and other interested parties to more easily consult the practices of different jurisdictions, expand the knowledge-base of migrant smuggling crimes and identify best practice models that can be used to enhance the effectiveness of domestic and international efforts in combating such crime.

 

UNODC regularly produces publications to provide more information on the elements of the crime of smuggling of migrants and to guide Member States in their implementation of the Protocol. In 2017, UNODC published the Issue Paper on The Concept of 'Financial or Other Material Benefit' in the Smuggling of Migrants Protocol. The paper examines how States have reflected this element of the international definition of the smuggling of migrants in their legislation and how this impacts on the fight against this crime.

UNODC launched its first Global Study on the Smuggling of Migrants in June 2018, which provides detailed information about key smuggling routes, such as the scale, profile and modus operandi of smugglers, profiles of smuggled migrants and the risks that they face.

UNODC Smuggling of Migrants Knowledge Portal is part of Sherloc portal, which aims at facilitating the dissemination of information regarding the implementation of the United Nations Convention against Transnational Organized Crime and its three Protocols.