Published in January 2019.

 

 
   This module is a resource for lecturers   

 

Assistance and protection in the Protocol against the Smuggling of Migrants

 

As explained in Module 1, while one of the purposes of the Protocol against the Smuggling of Migrants is to protect smuggled migrants, the Protocol is not a human rights instrument. It does, however, establish certain obligations on States parties regarding the provision of assistance to, and protection of, smuggled migrants.

Importantly, article 16(1) of the Protocol requires that States take all appropriate measures, consistent with their international obligations, to protect smuggled migrants' right to life and to not be subjected to torture or other cruel, inhuman or degrading treatment or punishment, as well as all other rights.

 

Protection against violence

Article 16(2) of the Protocol against the Smuggling of Migrants places an obligation on States to take adequate measures to afford migrants appropriate protection against violence that may be inflicted upon them, by individuals or groups, for the reason of having been smuggled. The precise content of such measures is not defined. Rather, this will depend on the specific circumstances of each case and the violence migrants are at risk of being subjected to, the individuals that may be affected as well as any special needs of migrants.

Preventive programmes may be a useful tool and a good example of proactive action by the State. States of origin may launch or support programmes of assistance to their nationals overseas through their embassies. In other instances, physical protection by law enforcement might be necessary. The safety of places where migrants are accommodated upon arrival should be guaranteed and safe channels established for referral and complaints when violence occurs. Likewise, positive steps may need to be taken to remove barriers to accessing protection (for example, laws or practices restricting persons without identification documents from accessing safe shelters).

Box 1

Protection Gap: violence against migrants

The teams heard reports of instances of disproportionate use of force during fingerprinting or forced returns, as well as verbal abuse by officials against migrants, including children. Of particular concern was the situation in [a country], where numerous migrants suffered physical violence such as beating and kicking; theft by police and other State actors; and abuse by vigilantes. The teams also heard reports of assaults on human rights defenders who advocate for the human rights of migrants. The teams further noted that at the time of the visits, violations and abuses had rarely led to conclusive investigations or prosecutions. This was in part due to a lack of safe reporting channels such as firewalls to ensure that criminal justice actors are not required to report irregular migrants to border authorities, as well as cases being dismissed for various reasons. For example, in the most prominent case in [a country], in which an Afghan national was killed after police authorities opened fire with live ammunition on a group of migrants, the team was informed that no disciplinary measures were applied to any officer, inter alia as a result of forensic conclusions that the bullet concerned ricocheted off a bridge.

OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017)
Box 2

Good Practice

The Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) group "Fliederlich" in Germany opened the first shelter for LGBTI refugees and migrants in Nuremberg, at the request of a number of people who felt threatened in the shelters where they were accommodated. There were also plans to open a larger shelter in Berlin. Several EU Member States reported the possibility of referring victims of gender-based violence to specialized women's shelters, providing immediate and safe accommodation to female victims of violence and their children, such as Austria, Greece, Germany, Italy, Hungary and Sweden. In Greece, in case of need, persons who are particularly vulnerable to gender-based violence are transferred to special facilities. There are 21 available shelters for victims of sexual and gender-based violence in Greece. Information on these mechanisms is available at registration and reception facilities. In Hungary, there is one special accommodation available for victims of sexual violence, torture or rape at the protected shelter in Kiskunhalas.

OHCHR and Global Migration Group, Principles and Guidelines, supported by practical guidance, on the Human Rights Protection of Migrants in Vulnerable Situations (March 2018)
 

Assistance to migrants whose lives or safety are endangered

Article 16(3) of the Protocol against the Smuggling of Migrants requires that States provide appropriate assistance to migrants whose lives and safety are endangered by reason of having been smuggled. Implementation of this article may include access to emergency food, shelter and basic medical care, access to consular services and legal assistance. In some instances, it may also require physical protection by law enforcement. To strive for the fullest enjoyment of this right, the humanitarian exemption from criminal prosecution is likely also to be of relevance (see Module 1).

In addition, article 9(2)(a) of the Protocol against the Smuggling of Migrants stipulates that where a State party takes measures against the smuggling of migrants by sea, it must ensure the safety and humane treatment of the persons on board the vessel.

Box 3

Good Practice

Front-line officers from the Tucson sector of the US Border Patrol pooled resources to purchase and establish rescue beacons at several points in the desert, from where migrants can call the Border Patrol directly when in distress, providing locations of these beacons via their own GPS units.

In Tunisia, Médecins Sans Frontiers (Doctors Without Borders) MSF is training local fishermen in search and rescue operation at sea.

Global Migration Group, Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations within large and/or mixed movements (Draft 2017)
 

Return procedures

Article 18 of the Protocol against the Smuggling of Migrants regulates the return of smuggled migrants. Article 16(1) and article 19 make it clear that return procedures must comply with international law, in particular human rights, refugee and humanitarian law and specifically with the non-refoulement principle (article 19(1)).

Return programmes are to be carried out in a safe, humane and orderly manner to maximize the possibilities for returned persons to reintegrate into their home country, thus avoiding new instances of smuggling. To this effect, it is important to seek the cooperation of returnees, including in planning the return. This may be considered a migrant smuggling prevention policy.

Voluntary return should be preferred over forced return. However, when forced return is pursued, the procedure should be transparent, fair and safe. Such returns should always be consistent with international standards, in particular the principle of non-refoulement (see Box 4).

Box 4

Principle of non-refoulement

Under international human rights law, the prohibition of refoulement entails an obligation not to extradite, deport, expel, return or otherwise remove a person, whatever their status, when there are substantial grounds for believing that the individual would be at risk of being subjected to torture or cruel, inhuman and degrading treatment or punishment, or other serious human rights violations, in the place to which they are to be transferred or removed, or of further transfer to a third State where there would be a real risk of such violations (See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 3; and Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant)

Human rights mechanisms have underlined that, under international human right law, the prohibition of refoulement is absolute (See A/70/303, paras 38 and 41; and Human Rights Committee, Israil v. Kazakhstan (CCPR/C/103/D/2024/2011), para 9 4; and Valetov v. Kazakhstan (CCPR/ C/110/D/2104/2011))

Under international refugee law "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion " ( Convention relating to the Status of Refugees, article 33 (1))

Global Migration Group, Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations within large and/or mixed movements (Draft 2017)

Accordingly, smuggled migrants should never be forced to return to countries where they are likely to face torture, cruel, inhuman or degrading treatment, or situations of widespread violence. This means that all decisions to return a smuggled migrant must fully take into consideration any claims to international protection and whether the proposed return would violate the individual's human rights or expose the person to persecution. Further, forced return should be carried out with the agreement of the country of origin.

Measures that compel smuggled migrants to leave a country as a group (known as "collective expulsion") are prohibited under various international and regional legal instruments (article 22 (1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, article 4 of the Protocol no. 4 to the European Convention on Human Rights) except where there has been reasonable and objective consideration of the particular case of each individual in the group (CCPR (Centre for Civil and Political Rights) General Comment no. 13). Otherwise, a strong risk exists of the return being arbitrary and, thus, discriminatory and potentially in violation of the principle of non-refoulement. Return procedures should follow a well-established legal process subject to judicial review.

Implementation of the above guidelines requires proactive action from the State in the development of adequate programmes and policies. For instance, where a person may not be returned on grounds of non-refoulement, the country must provide a solution for the person to be able to remain in the country legally and safely. It is further important to collect information about returned persons to ensure returns are sustainable, that individuals returned can fully enjoy their human rights, and that their lives and safety are not put at risk.

Box 5

Protection Gap: return of migrants

[T]he missions observed how the EU's hotspots and emergency relocation scheme resulted in prioritizing the determination of migrants' nationality in order to channel particular nationalities towards the asylum system. Combined with the necessity to carry out all procedures swiftly, including the return of individuals not in need of protection, the teams found that the process of determining and separating individuals presented a real risk that the refugee protection needs of individuals of a nationality with low asylum recognition rates, those not falling within the relocation scheme, or indeed those who had broader human rights protection needs may be overlooked. In Greece, the teams observed an implicit hierarchy of nationalities in the hotspots, which led in some instances to increasing tensions amongst migrants of different countries of origin, and concerns about discrimination and profiling based on nationality. In countries along the Balkan land route, the progressive closure of possibilities for transit during 2016 led to a significant ramping up of arbitrary and collective expulsions by authorities outside any judicial or other formal process, including a lack of registration of those informally handed over or pushed back. Documented cases of such expulsions number in the thousands but could be much higher. Many expulsions involved violence and some resulted in death or serious injury. In the former Yugoslav Republic of Macedonia, reports indicated that only migrants in obvious vulnerable situations, such as women who were obviously pregnant or those who were sick or travelling with children, were not deported or expelled.

OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017)
Box 6

Good Practice

Post-return monitoring is carried out by local NGOs: in Uganda for unaccompanied or separated children returning from Norway and in the Democratic Republic of Congo for unaccompanied or separated children returning from Belgium. This includes, in some instances, post-return support for families.

OHCHR and Global Migration Group, Principles and Guidelines, supported by practical guidance, on the Human Rights Protection of Migrants in Vulnerable Situations (March 2018)
 

Access to consular services and officials

Article 16(5) of the Protocol against the Smuggling of Migrants requires that when smuggled migrants are detained, States must comply with their obligations under the Vienna Convention on Consular Relations (as applicable), including by informing the migrants concerned without delay about their right to communicate with consular officials. Article 36 of the Vienna Convention on Consular Relations governs consular communication and contact with nationals who are detained. Importantly, consular visits should not be imposed against the will of the migrant. Individual sensitivities, for example where smuggled migrants are refugees, must be respected.

Box 7

Article 36 Vienna Convention on Consular Relations

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
 

Saving clause

Further to the above, article 19(1) of the Protocol against the Smuggling of Migrants explicitly stipulates that its implementation is to be consistent with "international humanitarian law and international human rights law, and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein". Article 19(2) further enshrines the principle of non-discrimination in the application of measures included in the Protocol. Fundamentally, article 19 preserves the application of international human rights law, humanitarian law and refugee law to smuggled migrants without discrimination on the basis that they have been smuggled.

 
Next: Looking beyond the Protocol: international human rights and refugee law
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