Transcript Trafficking in Human Beings – the international legal

Smuggling of Human Beings –
the international legal
framework
IML Training
IOM-UNITAR
New York 9-11 June 2010
Kristina Touzenis. IOM
Why prevent irregular migration?
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to avoid exploitation of irregular migrants by employers,
smugglers and traffickers
to prevent the existence of a marginalised group in society
thus contributing to social cohesion and stability
to ensure that migration is “managed” and the credibility
of legal immigration policies
to ensure satisfactory salary levels and working conditions
for national workers and lawfully resident migrant
workers, which are undermined by the employment of
irregular migrants
to avoid the existence of whole sectors /businesses
dependent on irregular migrant labour
International responses: a brief
chronology
 1970s
 UN Resolutions against migrant smuggling /trafficking
 ILO Convention No. 143 of 1975
 1980s - 1990
 UN Migrant Workers Convention drafted (adopted 18
December 1990; entry into force 1 July 2003)
 2000
 UN International Convention against Transnational
Organised Crime and Palermo Protocols
United Nations Convention Against
Transnational Organized Crime, 2000
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Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and
Children (2000)
Protocol Against the Smuggling of Migrants
by Land, Sea and Air (2000)
The Causes of smuggling
• Poverty, unemployment, and lack of opportunities
• Political and humanitarian crises
• In many less developed regions of the world, children
are entrusted to more affluent friends or
acquaintances with the intention to improve their
lives and relieve their families of economic burden
• Demand for inexpensive labour
• Restrictive immigration policies in traditional
countries of destination
• Criminal networks and transnational organized crime
The Smuggling process
Transfer
Agreement with the smuggler
(consent)
Destination
BORDER
SMUGGLING
END OF RELATION WITH
SMUGGLER
(Eventual Transit Country)
The Trafficking process
Recruitment
Transfer
EXPLOITATION
EXPLOITATION
COERCION
DECEPTION
ABUSE OF POWER
Place of Origin
Place of Destination
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Trafficking is …
A Crime against the Individual
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Smuggling is…
A Crime against the State
The Concept
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While, by definition, migrants cooperate with their smugglers
– even seeking them out and paying them—the act of
smuggling can often be a dangerous and abusive one.
Smuggling operations have many of the following
characteristics:
a broad transnational reach
networks of service providers to help in various stages of the
operationsinfluence on government officials at many levels
access to large sums of money at many locations
ties with other criminal enterprises
the ability to shift areas of operation according to "market"
conditions
an association with persons capable of violence within their
networks
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(a) “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;
(b) “Illegal entry” shall mean crossing borders
without complying with the necessary
requirements for legal entry into the receiving
State;
Article 3 of the Protocol AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR
Scope of the Protocol
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To prevent and combat smuggling in persons
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To respect the Human Rights of smuggled
migrants
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Investigation and prosecution
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To promote cooperation
Requires States to:
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Criminalise smuggling
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Co-operate to prevent smuggling
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Strengthen border controls to detect smuggling
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Address root causes
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Appropriate measures to “preserve and protect” rights
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Cooperate in return
Non-criminalisation of migrants
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Art. 5 Criminal liability of migrants
Migrants shall not become liable to criminal
prosecution under this Protocol for the fact of
having been the object of conduct set forth in
article 6 of this Protocol.
Criminalisation of smugglers
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1. Each State Party shall adopt such legislative and
other measures as may be necessary to establish as
criminal offences, when committed intentionally
and in order to obtain, directly or indirectly, a
financial or other material benefit:
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(a) The smuggling of migrants;
(b) When committed for the purpose of enabling the
smuggling of migrants:
(i) Producing a fraudulent travel or identity document;
(ii) Procuring, providing or possessing such a document;
(c) Enabling a person who is not a national or a permanent
resident to remain in the State concerned without complying
with the necessary requirements for legally remaining in the
State by the means mentioned in subparagraph (b) of this
paragraph or any other illegal means.
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(a) The smuggling of migrants;
(b) When committed for the purpose of enabling the
smuggling of migrants:
(i) Producing a fraudulent travel or identity
document;
(ii) Procuring, providing or possessing such a
document;
(c) Enabling a person who is not a national or a
permanent resident to remain in the State
concerned without complying with the necessary
requirements for legally remaining in the State by the
means mentioned in subparagraph (b) of this
paragraph or any other illegal means.
Cont.
• Participating as an accomplice in an offence
(…)
• Organizing or directing other persons to
commit an offence
Aggravating Circumstances
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Circumstances:
That endanger, or are likely to endanger, the
lives or safety of the migrants concerned; or
That entail inhuman or degrading treatment,
including for exploitation, of such migrants.
Prevention, cooperation
and other measures:
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Information
Border measures
Security and control of documents
Legitimacy and validity of documents
Training and technical cooperation
Protection and assistance measures (see upcoming
slide)
Agreements and arrangements
Return of smuggled migrants (see upcoming slide)
Protection
• Each State Party shall take, all appropriate measures, including
legislation if necessary, to preserve and protect the rights of
persons, in particular the right to life and the right not to
be subjected to torture or other cruel, inhuman or
degrading treatment or punishment.
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Each State Party shall take appropriate measures to afford
migrants appropriate protection against violence
• Each State Party shall afford appropriate assistance to
migrants whose lives or safety are endangered
4. States Parties shall take into account the
special needs of women and children.
5. In the case of the detention each State Party
shall informe the person concerned without
delay about the provisions concerning
notification to and communication with
consular officers.
Return
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Return of smuggled migrants
Each State Party agrees to facilitate and accept, without
undue or unreasonable delay, the return of a person who is
its national or who has the right of permanent residence
in its territory at the time of return.
2. Each State Party shall consider the possibility of facilitating
and accepting the return who had the right of permanent
residence in its territory at the time of entry into the
receiving State in accordance with its domestic law.
3. a requested State Party shall, verify whether a person
is its national or has the right of permanent residence
in its territory.
4. In order to facilitate the return of a person who is
without proper documentation, the State Party of
which that person is a national or in which he or she
has the right of permanent residence shall agree to
issue, at the request of the receiving State Party, such
travel documents
5. Each State Party involved with the return of a person
shall take all appropriate measures to carry out the
return in an orderly manner and with due regard
for the safety and dignity of the person.
Prevention and Root Causes
Each State Party shall take measures to ensure that it provides or
strengthens information programmes to increase public
awareness of the fact that smuggling is a criminal activity
frequently perpetrated by organized criminal groups for profit
and that it poses serious risks to the migrants concerned.
States Parties shall cooperate in the field of public information
for the purpose of preventing potential migrants from
falling victim to organized criminal groups.
Each State Party shall promote or strengthen, as appropriate,
development programmes and cooperation at the national,
regional and international levels, taking into account the
socio-economic realities of migration and paying special
attention to economically and socially depressed areas
THANK
YOU!
GJE