Published in January 2019.
This module is a resource for lecturers
Complementary activities and role of non-criminal justice actors
Non-criminal justice actors have a complementary role to law enforcement and judicial authorities. This derives from the fact that a robust multidisciplinary approach relies on both criminal law and non-criminal law responses. In Module 3, the role of some non-criminal justice actors and their contribution to criminal justice responses to smuggling of migrants was explained. At this stage, a brief, non-exhaustive and contextualized overview of those actors, in the context of non-criminal justice responses, is given.
Private stakeholders
Private stakeholders may be able to help combat illegal activities and public order problems. They may have relevant information and be able to act on their own. For instance, private stakeholders can play a role in denying access to property that criminals use to facilitate illegal activities. For example, a property owner might be able to terminate a lease when the tenant starts using the facility for enabling illegal stay with the purpose of obtaining an undue or disproportionate financial or other material benefit, which could be construed as "illegal means" under the Protocol against the Smuggling of Migrants. The contract may clearly provide for the possibility of termination on grounds that the property hosted or was used in pursuance of criminal or illegal activities. By the same token, provisions on the protection of public order in legislation may lead to similar results, depending on national laws.
In the case described below in Box 5, the actions of the company Unilever show how private companies may pressure other entities into combatting illegal activities.
Box 5
Unilever threatens to pull ads from Facebook and GoogleUnilever has threatened to withdraw ads from platforms like Google and Facebook if they do not do enough to police extremist and illegal content [such as advertisement for SOM ventures]. Unilever said consumer trust in social media is now at a new low. "We cannot have an environment where our consumers don't trust what they see online," said Unilever's chief marketing officer Keith Weed. He said it was in the interest of digital media firms to act before "advertisers stop advertising". Mr Weed said companies could not continue to support an online advertising industry where extremist material, fake news, child exploitation, political manipulation, racism and sexism were rife. "It is acutely clear from the groundswell of consumer voices over recent months that people are becoming increasingly concerned about the impact of digital on wellbeing, on democracy - and on truth itself," Mr Weed said. "This is not something that can be brushed aside or ignored. " Unilever has pledged to:
According to research firm Pivotal, Facebook and Google accounted for 73% of all digital advertising in the US in 2017. During 2017, Google brought in £4.4bn in revenue from online advertising, while Facebook collected £1.8bn, according to eMarketer. Experts in digital media say that more buyers of advertising will have to join Unilever to spur change. "The advertising ecosystem contains so many players, so for Facebook and Google to see any dent in the profits they make, there will need to be many companies that not only put their hat in the ring, but also follow through on these threats," Sam Barker, a senior analyst at Juniper Research told the BBC. However, despite their considerable power, she did not feel that the likes of Facebook and Google could afford to anger enormous commercial organizations with multi-billion-pound advertising budgets. "In the current situation, advertisers would lose out," she said. "It may be we're reaching a tipping point - fast moving consumer goods companies will pursue this...they cannot not consider the erosion of consumer trust in their brands." A Facebook spokesperson told the BBC: "We fully support Unilever's commitments and are working closely with them." BBC News, 12 February 2018 |
The role of media and civil society
Public awareness regarding the causes and effects of migrant smuggling is essential in addressing the phenomenon. All elements of civil society can contribute in this regard, from NGOs to faith-based organizations and the media. These stakeholders may be a significant asset in identifying worrying trends of activities that may involve migrant smuggling and related abuse, and referring such red flags to State authorities (whether administrative or law enforcement bodies).
The media play an important role in increasing public awareness as well as influencing public views and attitudes toward smuggling-related issues. Accordingly, the responsibilities of media and the ethical dimensions of media creation, provision and consumption as well as the ethical obligations that media providers have towards society should be acknowledged (see Module 10 on Media Integrity and Ethics of the University Module Series on Integrity and Ethics).
Box 6 below shows an example of the negative impact that media can have in creating an atmosphere of hostility towards migrants.
Box 6
Protection Gap - Media[T]he teams noted that some segments of the media were instrumental in contributing to an atmosphere of hostility towards migrants, as well as towards migrants' human rights defenders and organizations, including by making false allegations against them. In some countries, this concerned primarily the tabloid media, while in others, anti-migrant views and incitement to hatred was seen across a broad spectrum of the media. OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017) |
In addition to the role of civil society in raising awareness and monitoring, as well as referring suspicious incidents to competent authorities, civil society has, in some instances, spontaneously organized itself in order to provide assistance and protection to smuggled migrants (see Box 7 below as well as the video and example provided in Exercise 2).
In other cases, civil society voluntarily collaborates with State institutions. While doing so, civil society may carry out functions that are the responsibility of the State, which itself bears obligations for ensuring the rights of individuals under its jurisdiction (see Module 2). The fact that civil society, in such situations, performs functions in lieu of the State does not mean that the State is no longer responsible for protecting the rights of smuggled migrants. Fundamentally, it is critical that the State carries out its obligations to protect smuggled migrants and prevent any activities that may jeopardize their safety (see Module 2)
Box 7
Medical volunteers (Italy)The teams did note positively how certain facilities in Italy had cooperation agreements with medical volunteers to lessen the workload for state-funded doctors and provide increased services for migrants, although those doctors still noted their inability to ensure access for all who may be in need. OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017) |
Academia and research
Academia and research centres are integral in disseminating knowledge. In addition, they have unique expertise allowing them to analyse and identify policy and legislative gaps in addressing migrant smuggling. They can also point out challenges and good practice and make substantiated proposals with the aim of improving the efficacy of existing anti-smuggling strategies. Importantly, though, they often lack the required resources to carry out these tasks. State or private sponsoring is indispensable in this context.
Box 8
University of Queensland (Australia) Migrant Smuggling Working GroupIn 2011, the University of Queensland's (UQ) TC Beirne School of Law in conjunction with the School of Political Science & International Studies set up a research group to undertake comprehensive analysis of the smuggling of migrants. The respective website documents the objectives, activities and research findings of the UQ Migrant Smuggling Working Group. This work complements the research conducted by the UQ Trafficking in Persons Working Group, established in 2008. |
Cooperation between border control officials and other professionals
Individuals working within border control, in addition to the law enforcement mandate they pursue, are in a unique position to alert other authorities (rather than law enforcement) to the need for investigations. For instance, they may come across suspicious individuals who are not disclosing all required information, appear afraid or seem to be protecting someone. Pursuing investigations immediately (such as while still onboard a smuggling vessel) might undermine the safety of migrants, as there might be smugglers in the vicinity. Alerting other professionals who will subsequently encounter migrants (such as medical staff, psychologists or NGOs collaborating in providing first assistance) to the need for follow-up may be essential. This will reduce opportunities for intimidation of the migrant. This approach is even more important given the fact that smugglers often operate around and within reception centers.
This methodology requires professionals dealing with migrants shortly after arrival to be well-trained, allowing them to detect suspicious incidents and follow-up promptly and effectively.
Ministries, embassies and consulates
Countries of origin must have effective systems of assistance and protection in place in destination countries that can assist smuggled migrants. Embassies and consulates of the countries of nationality of smuggled migrants may play a significant role in preventing the continuance of smuggling ventures. They may also assist in stopping smuggled migrants from falling prey to organized criminal groups in destination and transit countries. While embassies and consulates are unlikely to reduce demand for smuggling services, they can play an important role in protecting smuggled migrants from immediate harm.
Destination countries should develop strong anti-corruption policies and mechanisms in their embassies and consulates in countries of origin. It is not uncommon to find cases in which embassies were involved in the issuing of fraudulent visas. Embassies may also be misled into issuing immigration documents. In addition, staff members should be trained to detect cases of abuse.
Ministries in destination countries also have an important role to play in developing programmes aimed at addressing specific aspects of migrant smuggling.
Box 9
Finland - The Ministry for Foreign Affairs campaigns against migrant smugglingThe Foreign Ministry has launched a campaign against migrant smuggling. The campaign primarily targets migrants falling in the hands of organized smuggling groups and being potentially victimized. The aim of the campaign is to warn of the extent of the phenomena, the risks attached to it, and the dramatic consequences it has on the life and safety of migrants who may also become trafficking victims. The Ministry for Foreign Affairs lobbies the theme on social media channels by means of posting videos and briefings. |
Box 10
Processo 294/07From early 2005 until 12 April 2006, G.V. - aware of the high number of Moldovan citizens wishing to go and work in Portugal - orchestrated a plan intended to facilitate the illegal entry of such individuals in Portugal. Her scope was to procure fraudulent work permits to interested Moldovans upon payment of 2000 Euro per person. This amount increased to 2500 Euro in November 2005. The work permits were issued at the Embassy of Portugal in Romania, in the context of a procedure that initiated in Portugal and depended of fictitious offers of work in Portugal. G.V. gathered the support of several people of her trust who assisted in executing the criminal plan. The latter lied on three main vectors: (i) contact with, and recruitment of, interested migrants in Moldova; (ii) procurement of necessary documentation in Portugal (under the direct supervision of G.V.); (iii) supervision and coordination of the two afore-mentioned vectors (also under supervision of G.V). G.V. followed closely the different "individual files", from the compilation of all relevant data and documents to referral to the consular services. G.V., together with her closest associates, tried to gather the support of other persons necessary to the successful development of the criminal plan, notably businessmen (especially in the areas of construction and agriculture) who were willing to "sell" false offers of work. These businessmen perceived between 300 and 600 Euro for each fictitious job offer. They never intended to take on any migrant as a worker. The defendant - a businessmen in the field of agriculture - was one of the persons who agreed to issue false offers of work, within the criminal scheme orchestrated by G.V., with the purpose of obtaining a financial gain. He never actually admitted any of such migrants at his service. It has not been determined the exact amount of the compensation he received for the job offer he issued. Approximately in September 2005, G.V. delivered to the appellant the data of several Moldovan potential migrants. Acting upon it, the defendant prepared and signed the corresponding job offers. G.V. had established criminal links with individuals working in several governmental services, the positive feedback of whom was essential to obtain the work permits for the interested Moldovan migrants. (…) Various visas were issued because of this criminal venture. This scheme led to the entry in Portugal of several migrants in possession of documents fraudulently obtained. At a certain stage, the Embassy of Portugal in Bucharest became suspicious of the number of offers of work issued by the same individuals. It then decided to suspend the consular files relating thereto. In view of the delay in obtaining the work permits and after being informed by the Embassy of Portugal that the concerned files were under investigation, G.V. attempted to destroy all documents connecting her to the criminal plan. G.V and the defendant were ultimately convicted. SHERLOC Case Law Database on the Smuggling of Migrants - Portugal |
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Macro-perspective in addressing smuggling of migrants
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