Issue Paper The Concept of “Financial or Other Material Benefit” in the Smuggling of Migrants Protocol UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna The Concept of “Financial or Other Material Benefit” in the Smuggling of Migrants Protocol Issue Paper UNITED NATIONS New York, 2017 The description and classification of countries and territories in this study and the arrangement of the material do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authori- ties, or concerning the delimitation of its frontiers or boundaries, or regarding its economic system or degree of development. This publication has not been formally edited. © United Nations Office on Drugs and Crime, 2017. All rights reserved, worldwide. Publishing production: English, Publishing and Library Section, United Nations Office at Vienna. Preface As the guardian of the United Nations Transnational Organized Crime Convention and the Protocols thereto, UNODC is mandated to support States Parties in efforts to fulfill their obligations under these instruments. It is in this context that we present this Issue Paper on the “financial or other material benefit” element of the international legal definition of smuggling of migrants as set out in the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention against Transnational Organized Crime (Smuggling of Migrants Protocol). This study follows earlier work undertaken by UNODC to elaborate guidance on concepts contained in the definition of human trafficking. The series of Issue Papers that were produced on the basis of that work have been welcomed by States Parties to the Protocol on Trafficking in Persons Especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime and have been used in developing new laws and interpreting existing ones. It is hoped that this first Issue Paper on the definition of migrant smuggling – and others that may follow it – will have a similarly positive impact. “Financial or other material benefit” is the purpose of migrant smuggling. It is the reason behind the growing involvement of organized criminal groups in conduct that often puts the lives of vulnerable migrants in great jeopardy. The financial or other material benefits associated with migrant smuggling are fueling a trade that turns human suffering and resilience against unfair odds, into enormous and unscrupulously procured profits. For these reasons, this critical element of the international legal definition was prioritized for study. Migrant smuggling is not always understood in accordance with the definition set out in the Smuggling of Migrants Protocol, and in many cases it is not distinguished from the phenomenon of facilitated illegal entry with no benefit motive, an act that falls beyond the scope of the Protocol. The framework provided by the Organized Crime Convention and the Smuggling of Migrants Protocol aims at supporting States collectively address the involvement of organized crime in the facilitation of irregular migration, which manifests itself through the financial or other material benefit element. Smuggling of migrants has become a very profitable business generating significant proceeds that can be disrupted by “following the money”, as for other forms of organized crime. Dismantling organized smuggling networks and bringing top-level organizers to justice requires political will, prioritization of resources, concerted efforts as well as a common understanding and very solid judicial cooperation along smuggling routes. Migration-focused measures risk not fully addressing the challenges presented by migrant smuggling as a form of serious organized crime, to the potential benefit of criminals and to the detriment of migrants. iii UNODC will continue working closely with States Parties to the Smuggling of Migrants Protocol to strategically sharpen criminal justice efforts against the serious and profit-driven crime of migrant smuggling, while protecting the rights of smuggled migrants. To that end, it is hoped that this Issue Paper will be seen as the start of ongoing and determined collaboration to better understand the importance of the role that “financial or other material benefit” plays in driving organized smuggling, and how the efforts of States and the international community can be harnessed towards combating it. iv Acknowledgments The present publication was developed by the UNODC Human Trafficking and Migrant Smuggling Section (HTMSS) under the overall coordination of Ilias Chatzis and the substantive guidance of Morgane Nicot in collaboration with Panagiotis Papadimitriou. The publication was drafted by Dr. Anne T. Gallagher (consultant), with the support of Dr. Marika McAdam (consultant), who was responsible for conducting the majority of country surveys. Special thanks are extended to UNODC field offices for the support they provided for the country visits, and in particular the Liaison and Partnership Office for Mexico, the Regional Office for the Middle East and North Africa, the Regional Office for South Eastern Asia and the Pacific, the Country Offices for Tunisia and Indonesia; as well as to Ms. Annalisa Pauciullo (HTMSS) who supported the country visit to Italy. This work would not be possible without the commitment of experts around the world who shared their expertise and insights. UNODC expresses its appreciation to those who attended the expert group meeting in Vienna on 15-16 November 2016 and who provided important input: Syuhaida Abdul Wahab Zen, Sarah Algner- Abendroth, Simona Ardovino, Rami Badawy, Andrea Bonomo, Taha Chebbi, Andhika Crisnayudhanto, Yvon Dandurand, Lisa Jacobson, Mohamad Abazafree Mohd. Abbas, Humberto Morales Nava, Nikolaos Poimenidis, Mark Seebaran, Adriano Silvestri, Kadri Soova, Rahmat Sori, Dishna Warnakula, Lisa West and Susanne Wilke. Thanks are also due to the large number of government officials and practitioners, listed in Annex 3, who gave generously of their time and expertise in helping with the country surveys and reviewing the draft Issue Paper. The study was made possible through funding received from the Government of Switzerland. v Table of Contents Preface ................................................................................................................ iii Acknowledgments ................................................................................................ v Table of Contents ................................................................................................. vii Executive Summary............................................................................................... ix Background ........................................................................................................................................................ ix Purpose and expected outcomes ............................................................................................................... ix Methodology of the study .............................................................................................................................. x The international legal definition of smuggling of migrants .......................................................... x Review of national law and practice ........................................................................................................ xi Conclusions ..................................................................................................................................................... xiii PART 1. INTRODUCTION ........................................................................................ 1 1.1. Background ................................................................................................................................................. 1 1.2. Context of this study ............................................................................................................................... 3 1.3. Purpose and expected outcomes ....................................................................................................... 4 1.4. Methodology ............................................................................................................................................... 4 1.5. Structure ...................................................................................................................................................... 5 PART 2. THE CONCEPT OF “FINANCIAL OR MATERIAL BENEFIT” WITHIN THE DEFINITION OF MIGRANT SMUGGLING ................................................................. 7 2.1. Drafting history of the Smuggling of Migrants Protocol and its definition ...................... 7 2.2. “Financial or other material benefit” in the Smuggling of Migrants Protocol ................. 9 2.3. “Financial or other material benefit”: regional insights ........................................................ 10 2.4. General conclusions on “financial and other material benefit” in international law and policy .......................................................................................................................................................... 13 PART 3. NATIONAL LAW AND PRACTICE: OVERVIEW ........................................... 17 3.1. States that explicitly include “financial or other material benefit” as an element of base smuggling