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Introduction to People Smuggling
Simply, People smuggling is the racketeers arrange for migrants without legal visas and paperwork
to cross international borders. The racketeers manipulate providing fake identification documents,
organizing transport, and bypassing official border controls.
As the international community, “Smuggling of migrants” shall mean the procurement, in order to
obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person
into a State Party of which the person is not a national or a permanent resident.”
“Illegal entry” shall mean crossing borders without complying with the necessary requirements for
legal entry into the receiving State.”1
Basically every country in the world is affected by the smuggling of migrants in some way; either
as country of source, transit or destination. People smuggling can happen by air, sea or land, often
by complex routes which change rapidly and frequently.
Among the well-established routes are:
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Middle East and Central Asia to Europe
East, North and West Africa to Europe
South America and Central America to North America
Asia to Australia.
Nowadays, People smuggling is become a deadly business as well as the racketeers are well
organized. Currently, data is too scattered and incomplete to paint an accurate picture of numbers
of people who are smuggled each year and the routes and methods used by those who smuggle
them. Still, available evidence reveals the following trends and patterns.
Given the dangerous and clandestine criminal nature of people smuggling operations, smuggled
persons are sometimes at risk of becoming victims of other crimes. Aside from subjection to unsafe
conditions in their journeys to their destinations, smuggled individuals may also be subject to
physical or sexual abuse or placed in hostage-like conditions until their debts are paid off. Others
might face exploitation or be forced to participate in other criminal activities during their journey
as smuggled individuals. Because smuggling can generate substantial profits for those involved,
which in turn can fuel corruption and organized crime in countries during the smuggling process.
However many international law instruments regulates the people smuggling around the world to
discourage this vital problem. So we see how they involve with this deadly business.
1
United Nations Convention Against Transnational Organized Crime, Smuggling of Migrants Protocol, Article 3
(2004)
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Role of the International Law Instruments in People Smuggling
As the global community, people are for people. There are many conventions and law systems to
prevent people smuggling. They often regulate and get legal action. And domestic law systems of
each country get actions as their jurisdiction.
INTERPOL is doing a huge task to regulate the people smuggling in the world with connecting
with other main organizations. People smuggling takes place on all scales but INTERPOL’s focus
is on organized networks, due to their international dimension. Their response includes the
following.
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Law enforcement operations to dismantle the criminal networks behind people smuggling;
A series of databases, available in real-time and at frontline locations, including data
on stolen and lost travel documents; fraudulent documents and INTERPOL notices;
The International Contact Directory for People Smuggling Issues helps connect specialized
law enforcement officers with their counterparts around the world;
Their Integrated Border Management Task Force (IBMTF) is the central point of contact
and coordination for international border-security activities at INTERPOL.
The Operational Forum on Countering Migrant Smuggling Networks can build a trusted
coordination platform for police across the globe. Among its activities, this platform will provide
criminal analysis, coordinate law enforcement operations and deliver targeted training. 2
INTERPOL works with a number of other international organizations who are involved in the fight
against people smuggling and human trafficking, including:
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Eurojust
Europol
Frontex
International Organization for Migration
International Labour Organization
Organization for Security and Co-operation in Europe
Southeast European Law Enforcement Center
United Nations Office on Drugs and Crime
INTERPOL’s strategy for countering migrant smuggling sets out a comprehensive programme
comprising six pillars, designed to be flexible and responsive whilst incrementally building police
capacity in order to deliver sustainable outcomes.
An immediate operational response is complemented by long-term investigative support, extensive
training and technical assistance for police in affected countries, particularly in countries of source
and transit. The strategy will be implemented over a five-year period. The aim is to equip member
countries in the regions most affected by migrant smuggling with the tools, skills and operational
know-how to disrupt the criminal networks responsible, whilst enhancing policing resilience to
future threats.3
2
The International Criminal Police Organization, People smuggling
<https://www.interpol.int/Crime-areas/Trafficking-in-human-beings/People-smuggling>
3
Strategy for countering migrant smuggling(INTERPOL General Secretariat, November 2015)
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United Nations Office on Drugs and Crime's Response to Migrant Smuggling
As the guardian of the United Nations Convention against Transnational Organized Crime and its
supplementary protocols, UNODC's primary goal with respect to combating migrant smuggling, is
to promote global adherence to the Smuggling of Migrants Protocol and assist States in their efforts
to effectively implement it. The Smuggling of Migrants Protocol aims to:
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Prevent and combat the smuggling of migrants
Protect the rights of smuggled migrants
Promote cooperation between states
In providing technical assistance towards achieving these goals globally, UNODC's response is
focused on two working areas:
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Assisting states in bringing their legislation in line with the Protocol, and
Assisting states in developing an effective criminal justice response to migrant smuggling
The Model Law against the Smuggling of Migrants was developed by UNODC in response to a
request by the General Assembly to the Secretary-General to promote and assist the efforts of States
to become party to and implement the United Nations Convention against Transnational Organized
Crime and the Protocols thereto. It was developed in particular to assist States in implementing the
provisions contained in the Protocol against the Smuggling of Migrants by Land, Sea and Air. The
content of the Model Law was drafted through a comprehensive, collaborative effort conducted
through two Expert Group Meetings and reviewed by an expert group of judges and prosecutors.
It is currently available in Arabic, English, French, Russian and Spanish.
UNODC in cooperation with Interpol and Europol and with funding received from the European
Union, has elaborated basic training modules on preventing and combating migrant smuggling. It
has done this through a series of expert group meetings (EGMs) of law enforcers and prosecutors
from around the world. The first Expert Group Meeting was held in 30th November to 2nd
December 2008 in Saly, Senegal, the second EGM from 23rd to 25th March in Cairo, Egypt and
the third EGM was held from 22nd to 24th June in Abuja, Nigeria.
A Toolkit to Combat Smuggling of Migrants has been designed to assist countries to implement
the Smuggling of Migrants Protocol. Specifically, the Toolkit is intended to provide guidance,
showcase promising practices and recommend resources in thematic areas addressed in the separate
tools. The promising practices and recommended resources included in this Toolkit by no means
comprise an exhaustive collection of successful, creative and innovative response to addressing
migrant smuggling. However, in light of the urgent need for cooperative response to the
phenomenon, examples have been included with the intention both of commending such initiatives
and of demonstrating the range of resources available to assist users in undertaking the antismuggling efforts that may feature in the next edition of this Toolkit.
UNODC is supporting States in West and North Africa in implementing the Smuggling of Migrants
Protocol and strengthening their criminal justice systems, through its Impact Programme. UNODC
holds Training Workshops for Prosecutors on Investigating and Prosecuting Migrant Smuggling
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One example is the training workshop for 25 Egyptian prosecutors on the investigation and
prosecution of migrant cases held by the Regional Office for the Middle East and North Africa in
Cairo, Egypt during the period 24 to 26 May 2011.
UNODC is currently developing and implementing a number of new projects to assess and
counter the various threats posed by human smuggling. To do so effectively, and to learn from
already existing research on migrant smuggling for current and future programme design, it is
imperative to gain an overview of the current state of knowledge on the subject by consolidating
the existing literature on the subject in one comprehensive and informative background
document.4
Protocol against the Smuggling of Migrants by Land, Sea and Air
“The Protocol against the Smuggling of Migrants by Land, Sea and Air”, supplementing the
Convention against Transnational Organized Crime, was adopted by the United Nations General
Assembly in 2000. It is also referred to as the Smuggling Protocol. It is one of the three Palermo
protocols, the others being the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
especially Women and Children and the Protocol against the Illicit Manufacturing and Trafficking
in Firearms, Their Parts and Components and Ammunition.
The Smuggling Protocol entered into force on 28 January 2004. As of September 2017, the protocol
has been signed by 112 parties and ratified by 146.
The Protocol is aimed at the protection of rights of migrants and the reduction of the power and
influence of organized criminal groups that abuse migrants. It emphasizes the need to provide
migrants with humane treatment, and the need for comprehensive international approaches to
combating people smuggling, including socio-economic measures that address the root causes of
migration.
The Protocol requires States Parties that have ratified to ensure that people smuggling is
criminalized in accordance with its terms, and those set out in the Convention on Transnational
Organized Crime.
Given the current political priority around people smuggling, it is perhaps surprising that a
concerted international focus on defining and responding to migrant smuggling only occurred in
the 1990s. This focus followed sharp rises in irregular migration to the United States, and to Europe
in the 1980s and 90s. A focus on those who facilitate irregular migration - rather than migrants
themselves - was seen as a critical element of any response. The resulting legal framework was the
Protocol against the Smuggling of Migrants by Land, Sea and Air (Migrant Smuggling Protocol)
that supplements the parent instrument, the United Nations Convention against Transnational
Organized Crime. The Migrant Smuggling Protocol does not provide a complete or self-contained
legal regime but instead exists as part of a "dense web of rights, obligations and responsibilities
4
United Nations Office on Drugs and Crime, Smuggling of migrants
<http://www.unodc.org/unodc/en/human-trafficking/smuggling-of-migrants.html>
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drawn not just from the Protocol and Convention but also from the law of the sea, human rights
law, and refugee law."
Unlike human trafficking, people smuggling is characterized by the consent between customer and
smuggler - a contractual agreement that typically terminates upon arrival in the destination location.
However, smuggling situations can nonetheless in reality descend into situations that can best be
described as extreme human rights abuses, with smuggled migrants subject to threats, abuse,
exploitation and torture, and even death at the hands of smugglers (see for example, case studies in
Gallagher and David, International Law of Migrant Smuggling, 2014, 9-10). 5
International Organization for Migration (IOM) & counter migrant smuggling
The worldwide smuggling of migrants on land and sea, results in large-scale deaths. In the last two
decades and particularly over the last three years with the effects of the Arab Spring and conflict
in the Middle East and North Africa, there has been a dramatic increase in those attempting to cross
borders with the services of migrant smugglers. The phenomenon of migrant smuggling is
characterized by high human cost and high profits for transnational criminal networks, while states
face challenges in preserving the integrity of their migration governance systems and sovereign
borders and fulfilling their responsibilities to protect individuals' human rights.
IOM’s role is to
 Examine and build legislative capacity to criminalize migrant smuggling and prosecute
smugglers.
 Build the capacity of law enforcement bodies to investigate cases of migrant smuggling.
 Build the capacity of front-line border management teams and specialist anti-smuggling
units to interdict migrant smuggling and to process smuggled migrants while meeting their
protection needs.
 Develop and strengthen IT tools to effectively combat migrant smuggling, including border
management information systems, biometric capture and intelligence development.
 Support the creation of an intelligence-led approach to preventing migrant-smuggling
enhance close regional and inter-regional cooperation among key countries.
 Advocate for the exchange of best practices, trans-national and international tools that
counter smuggling of migrants’ activities.
And IOM’s objective is “enable states to more effectively interdict migrant smuggling and save
migrants lives foster regional and international cooperation to fight migrant smuggling”6
5
Wikipedia, Protocol against the Smuggling of Migrants by Land, Sea and Air
<https://en.wikipedia.org/wiki/Protocol_against_the_Smuggling_of_Migrants_by_Land,_Sea_and_Air>
6
Immigration & Border Management Programme, Counter Migrant Smuggling(Department of Migration
Management – Immigration and Border Management Division, IOM)
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People Smuggling Legislations- Sri Lanka and Australia
Sri Lanka's civil war lasted almost 26 years and cost tens of thousands of lives. Since the end of
the war in 2009, several thousand asylum seekers from Sri Lanka have sought protection in
Australia, but both Labor and Liberal/National Coalition governments have taken a restrictive
approach to their arrival and have expressed support for the Sri Lankan government.
The smuggler’s most favorite route to Australia is Sri Lanka-Malaysia-Australia or Sri LankaIndonesia-Australia. Sometimes international people smugglers use the land of Sri Lanka as the
supporting land to irregular migrate to Australia.
Source: United Nations Office of Drugs and Crime
It should be noted that recently Sri Lanka police and the Anti-Human Smuggling Division of the
CID (Criminal Investigation Department in Sri Lanka Police) arrested close to 800 Indian,
Pakistani and Bangladeshi smugglees attempting to transit through Sri Lanka. With the relaxation
of visa controls (a 30-day visitor’s visa is easily obtainable by SAARC citizens at the airport), Sri
Lanka’s sea smuggling infrastructure had become popular transit points for smugglees from the
countries India, Pakistan and Bangladesh.7
7
Danesh Jayatilaka, Research Study on Human Smuggling in Sri Lanka: windows for intervention by the
International Organization for Migration (IOM)6
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Sri Lanka’s civil war's beginning in 1983 and its end in 2009 coincided with Labor governments
in Australia, but the response by the Hawke government in 1983 was markedly different from that
of the Rudd and Gillard governments in the late 2000s. In 1983, Australia chose to process
applications for resettlement on humanitarian grounds ‘in‐country’. This paper draws on archival
documents from the Australian Department of Foreign Affairs and publications of the Australian
Department of Immigration and Ethnic Affairs to examine how Australia admitted Sri Lankans
under the in‐country Special Humanitarian Program (SHP) if they had a family sponsorship in
Australia and could prove they had been adversely affected by the outbreak of communal violence
in Sri Lanka in July and August 1983. In 1981 the Australian government established the SHP, a
specific stream of the migration program intended for persons who were in need of protection but
who fell outside the definition of refugee set out under Article 1(A)(2) of the 1951 Refugee
Convention.
The differences in the responses of the Hawke government in 1983 and the Rudd and Gillard
governments in the late 2000s can be attributed to two factors. First, while the size and composition
of the immigration program was a simmering political issue in 1983, only a small number of asylum
seekers were arriving in Australia at that point and there were no maritime arrivals (as compared
with the period 1976 to 1981). Australia's response to those Sri Lankans in need of protection was
therefore an attempt at striking a balance between humanitarian concerns, domestic political
considerations and foreign policy. In comparison, in the late 2000s, public disquiet in Australia
over the arrival of tens of thousands of asylum seekers, many of them Tamils, meant that domestic
political considerations weighed differently, and heavily, on the Australian government's refugee
policies. In the intervening period, the number of asylum seekers reaching Australia by boat had
increased markedly (although far below the number arriving in many other countries). The Sri
Lankans were among more than 44,000 people who sailed to Australia to claim protection during
the years 2009 to 2013.8
While immigration management in Australia has long involved security measures with visitors
checked against warning lists and migrants and temporary residents subjected to health, police and
character checks in the post 9/11 ‘war on terror’ environment, the irregular maritime arrival of
asylum seekers was framed in Australian political debate as a national security concern. Prime
Minister Rudd's attempt to unwind restrictive policies on unauthorized boat arrivals was seen by
many as having contributed to the arrival of 61 boats (carrying 2850 people) during 2009, and
almost 7000 arrivals in 2010. The politics of so‐called border protection became framed as a test
of leadership, and it was in this context that successive Australian governments sought to enlist Sri
Lanka's help in preventing the departure of both Tamil and Sinhalese.
Today, Sri Lankans continue to seek asylum in Australia in small numbers and in larger numbers
around the world.9 While they constituted the second highest group of asylum claimants in
Australia in 2012-13, the recognition rate was very low, at 11.6 per cent. In July 2013, the Rudd
government announced that asylum seekers arriving by boat would not be resettled in Australia.
Between this point and December 2013, once the Abbott government had fully implemented a ‘turn
back the boats’ policy, Sri Lankans (and asylum seekers of other nationalities) who made the
8
The Sri Lankan Civil War and Australia’s Migration Policy, Asia and the Pacific Policy Studies(Australian National
University)
9
UNHCR 2016 Report
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maritime journey were transferred to offshore detention on Manus Island in Papua New Guinea, or
Nauru. Since late 2013, most asylum seekers attempting to reach Australia by boat have been
intercepted at sea and turned around. At the time of writing, it is believed that Australian officials
had transferred at least five boatloads of suspected asylum seekers to the custody of Sri Lankan
authorities, and little is known about their fate upon return. Another boatload of 157 Sri Lankans
was held by Australian authorities at sea for 4 weeks in mid‐2014, before being transferred into
Australia's offshore immigration detention system.
After the situation is going on, Australia announced it would no longer accept refugees from Sri
Lanka or Afghanistan, saying the situation in those countries has improved enough that people no
longer need to seek protection elsewhere. The foreign minister, Stephen Smith, said the decision
was due to the end of the two-decade civil war in Sri Lanka and the improved situation for
minorities in Afghanistan. He said other countries had already stopped processing asylum claims
from Sri Lanka, but Australia may be the first to suspend Afghan applications.10
However On the 3rd of December, 2013, the Australian government announced new policy that
aimed to further discourage the arrival of irregular migrants in Australia. Immigration Minister
Scott Morrison announced that, effective immediately, the government has put a cap on permanent
protection visas for asylum seekers arriving by boat. This means that those asylum seekers who are
already in Australia will be left in a state of limbo with no prospects of obtaining work permission
until the cap is reset in mid-2014. Critics have labeled the move “brutal,”11 but the Tony Abbottled government insists that this is a necessary move to combat the activities of people smugglers
and discourage the dangerous sea voyage that many, including Sri Lankans, have unfortunately
attempted.
During the period 2011-2012, there were 825 recorded cases of Sri Lankan nationals attempting
irregular maritime arrivals (IMA) in Australia.12 This constituted approximately 11 per cent of all
IMAs in the country during that period. As IMAs from Sri Lanka clearly constitute a significant
portion of the total, the Australian Customs and Border Protection Service has begun issuing
Sinhalese and Tamil notices in the form of radio and TV advertisements and flyers in Sri Lanka
that discourage the dangerous maritime journey, featuring case studies and information on the
consequences of attempting the voyage13
Among the most pressing concerns related to curbing irregular migration is addressing the root
causes of such activities. Lack of socio-economic development and widespread poverty in certain
parts of the country are key push factors that force individuals to undertake the dangerous maritime
journeys to other countries.
10
“Australia stops accepting refugee claims from Sri Lanka and Afghanistan”, The guardian (online), Fri 9 Apr 2010
12.08 BST
11
Immigration Minister Scott Morrison Freezes Visas for Refugees, 2013, The Telegraph News, available
<http://www.dailytelegraph.com.au/news/nsw/immigration-minister-scott-morrison-freezes-visas-forrefugees/story-fni0cx12-1226774624590>
12
Rogers, Simon, 2013, Australia and Asylum Seekers: The Key Facts You Need to Know, The Guardian, available
<http://www.theguardian.com/news/datablog/2013/jul/02/australia-asylum-seekers>.
13
Australian Customs and Border Protection Service, 2013, Operation Sovereign Borders Communication Material,
available [http://www.customs.gov.au/site/offshore-communication-campaign-people-smuggling.asp].
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As of now, there are very few mechanisms the government of Sri Lanka (GoSL) has put in place
that aim to deter its country’s nationals from attempting these life-threatening voyages.14 Potential
migrants may be ill-informed about the dangers of people smugglers and the risks associated with
traveling in their company. Awareness campaigns about these potential dangers with case studies
placed in newspapers, local television channels, and radio stations could benefit potential migrants
in allowing them to make more informed decisions prior to attempting these journeys. The GoSL
could also enlist the cooperation of local community leaders to inform their followers about the
dangers involved, particularly leaders of religious and ethnic communities in areas that have high
rates of irregular migrant departures, thereby tapping into key information channels through which
potential migrants may be influenced.
Sri Lankan asylum seekers previously sent back by Australia prepare to enter the magistrate’s court
in Galle. Photograph: Lakruwan Wanniarachchi/AFP/Getty Images.
As the understanding of both governments, they are working to regulate the problem in positively.
Australia gave two retired navy patrol boats to Sri Lanka in a bid to crack down on people
smugglers. Tony Abbott visited a Colombo port to meet Sri Lankan navy officials and government
members and tour a patrol boat. "Australia appreciates its strong co-operative relationship with Sri
Lanka in countering people smuggling," the Australian prime minister said. This year 14 asylum
seeker boats have travelled directly from Sri Lanka to Australia compared with 120 in 2012. Abbott
14
Karunaratne, Chandana and Ashani Abayasekara, 2012, Managed Migration: Review of Readmission Agreements
and a Case Study of Sri Lanka, Institute of Policy Studies of Sri Lanka.
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said the Sri Lankan navy was getting better at disrupting people smugglers, with at least 12 onwater interceptions in 2013.15
Refugees and asylum applicants from Sri Lanka, 1985–2012 (Source: UNHCR Statistics)
Regional disparities in development in Sri Lanka have led people to migrate locally or
internationally looking for better income opportunities. The government is now making a
significant attempt to develop war-torn Northern and Eastern districts. It is important to stress that
Sri Lankan people have become very mobile locally as well as internationally. The major reason
for such movement is to find better employment, whether locally or overseas. Moreover, illegal
migration to overseas countries to look for employment opportunities is not a new phenomenon.
Sri Lanka already had a network of agents able to organize this illegal movement.
In a cut short, as the two members of common wealth nations Sri Lanka and Australia maintain
their unique law system. People smuggling is important problem for both. Already both parties
have gotten positive actions as their legislations. In future, we will see the problem is minimized.
15
Australia gives Sri Lanka old patrol boats, The guardian (online), Sun 17 Nov 2013 02.36 GMT