Will the EU Migration Agenda (at last) propose to update the EU legislation on smuggling ?

By Isabella MERCONE (FREE Group trainee)

It appears that after the recent tragedies in the Mediterranean, the European Union could finally take action against deaths in the sea, and focus its efforts on the fight against trafficking of human beings. Indeed, in its special meeting on the 23th April, the European Council promised to ‘undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers’, while the High Representative was invited ‘to immediately begin preparations for a possible CSDP operation to this effect’.[1] 

This statement has been perceived by some scholars as ‘a disproportionate measure’ as it mixes up different legal situation by covering smugglers, traffickers and even pirates in the same legal basket where the legal definition of these crimes is not the same so that this EU strategy looks too hasty and quite  ‘an outrage to human rights and even to the rule of law.’[2] It has still to be seen if such a repressive approach will be endorsed at UN level (as it recently happened with the EU pressure for criminalizing the so-called “Foreign Fighters” phenomenon). The EU High Representative Federica Mogherini will brief the UN Security Council on the issue on Monday (11 May), and for the time being  both the Russian and Chinese representatives and the UN Secretary General Ban-Ki-Moon have already expressed their contrary opinion, by saying that “Apprehending human traffickers and arresting these vessels is one thing, but destroying them would be going too far.”[3]

Smuggling an trafficking look similar but are legally different..

One can then guess if by proposing a bold action such as the destruction of smugglers boats, the European Union is not taking the wrong direction by using military means without a clear legal basis, outside its territory, when the issue should be more framed by criminal law measures be they linked to smugglers or to traffickers. Under this perspective it is worth recalling that, according to international law [4],
‘human smuggling’ is recognized as ‘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’, while
‘human trafficking’ is ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’[5]

This is to say that the difference between the two phenomena could be often very subtle, because both of them usually concern the transport of persons from one country to another. However, the different purpose is clear: while the smuggler simply aims at receiving the benefit for the assistance provided for the illegal entry in another country, human trafficking requires evidence of the intent to exploit the trafficked person.
This is why human trafficking and human smuggling differ, although in the real life they can often overlap [6]: because, even if many desperate people are looking for the services provided by smugglers,  not all of them are (fortunately) victims of trafficking, and they deserve different kind of support. Regrettably,these days the public debate and the press present these two different legal situations as if they were the same.
On his side, the European Union, even if it has established a broad legal framework concerning trafficking in human beings[7], has regrettably “forgot” to update its legislation on human smuggling, to effectively tackle this growing phenomenon.

An outdated EU legal framework for smuggling

It is worth recalling that the EU legal framework on smuggling (so-called “facilitators package”) dates back to 2002 and is composed by two [8]measures:

Council Directive 2002/90/EC, that provides a common definition of the offence and requires Member States to adopt effective sanctions upon any person who intentionally assists a third-country national ‘to enter or transit across’ a Member State ‘in breach of the laws of the State concerned on the entry or transit’ of foreigners, and any person ‘who, for financial gain, intentionally assists’ a third-country national to ‘reside within’ a Member State in breach of its national laws on residence. Identical sanctions must also be applied to instigators or accomplices and those who attempt to commit the activities in question.There is a ‘humanitarian’ exemption, applying ‘where the aim of the behaviour is to provide humanitarian assistance to the person concerned’. But this exception is optional, and only applies to the first category of offence.[9]

Framework Decision 2002/946/JHA, requires Member States to punish ail the conduct defined in the Directive by ‘effective, proportionate and dissuasive criminal penalties, which may entail extradition’, accompanied if appropriate by confiscation of transport, prohibition of practice of an occupation, or deportation. In cases of unauthorized entry or transit, there must be a maximum sentence of at least eight years if the activity was committed by a criminal organization or if committed while endangering a would-be migrant’s life.

These two measures were adopted as a partial implementation of the UN “Palermo” Convention and clearly only focus on the criminalization of smugglers. As such, they lack in addressing any other aspect of the problem, like prevention or protection of smuggled persons even if in particular there is still no EU requirement to criminalize (or to decriminalize) migrants who have breached immigration law as such.[10]
Instead of providing support and assistance to smuggled persons, who are often in difficult conditions before their departure, suffer great harm during the journey, and eventually find themselves “lost” in a foreign country, trying to build a new life, after having paid a great amount of money for a journey where they risk their life, the European Union decided to insist on the ‘need to combat illegal immigration’, reaffirming the importance of protecting State (EU) sovereignty, rather than providing legal forms of migration to people looking for a better life.

An issue for the EU Commission Migration agenda…

The humanitarian crisis in the Mediterranean is now apparently wakening up the EU and raising the awareness on the growing scale of the migration phenomenon. Moreover, after the Lisbon Treaty it could be possible for the same political majority [11] to adopt a comprehensive migration policy and frame in the same legal framework humanitarian and security aspects  by creating a binding burden sharing between the EU MS.
Now it could be the right time for the EU to change its approach by taking the individual at the core of the EU policies, as required by the Charter of fundamental rights and by dealing with smuggling in a more comprehensive and consistent framework. To do do, in its “holistic” Migration agenda, the Commission should also take into account the European Parliament recommendations :

On the humanitarian side : to provide alternative and safer channels of legal migration by associating in the definition of the new EU strategy and legal acts.Notably, the ministers for social affairs as the Ministers of Interiors, who are currently in charge of these issues, still have a partial distorted view of the human mobility dynamics. In the same perspective, the EU and its MS should engage in information and awareness-raising campaigns to make would-be-migrants aware about the risks they might face in their irregular journeys towards Europe, and inform them about the existence of alternative, safer but affordable forms of migration. It would also be helpful to improve the support to ‘victims’ of smuggling (not only as it is currently the case when the victims cooperate in the criminal investigation, prosecution and trial of a smugglers), both at the moment of arrival and for an appropriate period after.

On the security side : to improve the cooperation among MS in the investigation and conduction of joint operations (supported by EU agencies such as Frontex, Europol and Eurojust) by strengthening in a consistent operational framework the exchange of information dealing with people which can be considered a “threat” for the EU such as smugglers[12], Traffickers and foreign fighters[13].

…or for the UN Security Council ?

EU institutions before launching military operations should take into account what in recent forum between Prosecutors of EU member states has emerged eg that most of the current prosecutions relate to the criminal activity committed by those who provide the transport of migrants in boats, whereas only a few of them address the leaders of the organised crime groups behind this phenomenon. The limited exchange of information through Europol and the lack of coordination between EU Member States should be considered the main obstacles in identifying these organised crime groups. Moreover, effective legislation is considered essential to address this phenomenon and to clearly distinguish between smuggling and trafficking activities, by extending law enforcement’s powers to enter adjacent territorial waters when in hot pursuit of vessels suspected of trafficking.

Last but not least, in the medium and long term perspective, given the trans-border nature of smuggling and human trafficking, consideration should be given to the need to ensure prosecution at EU level of THB and smuggling of migrants crimes, as well as the opportunity to extend the competence of the European Public Prosecutor’s Office (EPPO) also to this kind of crimes. However, it is less than likely that this straight but more legally ambitious solution would be chosen, instead of the slippery shortcut of military intervention.

Further Reading :

Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
Shelley L., “Human Smuggling and Trafficking into Europe: a comparative prospective”, Washington DC, Migration Policy Institute, 2014.
Gallagher A.T., “Trafficking, Smuggling and human rights: tricks and treaties”, Forced Migration Review, 12 (2003), 25-28. NOTES
[1] European Council, ‘Special meeting of the European Council, 23 April 2015 – statement’, 23/04/2015, available at: http://www.consilium.europa.eu/en/press/press-releases/2015/04/23-special-euco-statement/
[2]See, for instance, Gabriella Carella, ‘Tratta degli esseri umani, uso della forza internazionale e prevenzione dei naufragi ( … dello stato di diritto)’, available at: http://www.sidi-isil.org/sidiblog/?p=1417
[3] EUObserver, ‘Russia to oppose EU sinking of migrant smuggler boats’, https://euobserver.com/foreign/128597
[4] Article 3(a) of the UNDOC Smuggling Protocol (‘Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime’, GA Res. 55/25, Annex III, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003)., available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[5] Article 3(a) of the UNDOC Trafficking Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, GA Res. 55/25, Annex II, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003), available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[6] It is not unusual that a victim of smuggling later on also falls into the hand of a trafficker, in order to pay off his debt for the journey (traffickers ad smugglers often know each other and cooperate).
[7] See primarily the Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA and the EU Strategy toward the eradication of trafficking in human beings 2012-2016.
[8] In the pre-Lisbon the legal basis for criminal sanctions was in the intergovernamental regime framing the judicial cooperation in criminal matters (so called “ third pillar”).
[9] See Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
[10] It should not be forgotten, however, that Article 31 of the Geneva Convention on refugee status exempts refugees who have entered or stayed irregularly from penalties under certain circumstances.
[11] Before the Lisbon Treaty legislation on Legal migration required the unanimity in Council.
[12] Actually, a provision concerning Communication of information between the Member States is already established by article 7 of Directive 2002/90/EC, but so far it is not clear if the MS have adequately implemented this provision.
[13] It is worth recalling that Europol has recently established a “Focal Point (FP) Travellers” which is mainly focused on so called “foreign fighters” and which is opened to all the EU  Member States as well as to third countries such as Australia, Norway, Switzerland and the US Custom and Border Protection Service (CBP). Eurojust has also asked to be associated.

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