Similarly, in addressing smuggling of migrants, commentators rightly note that there is a dangerous shift towards ‘crimmigration’ – an approach that interweaves criminal law and immigration law in order to criminalise both migrants and those who assist them. Again, this does not speak to the flaws of the smuggling protocol, but to its misuse whether in ignorance or by design.
A serious criminal justice response was never meant to apply to a hapless motorist driving an irregular migrant across a border. And a fishing boat delivering rescued migrants in distress to a place of safety is a question for maritime, migration, and humanitarian law, not the law against organised crime. The current debate raging around the ‘financial or material benefit’ element of the smuggling offence could be spared if we remembered that article 4 places the actions of humanitarian actors and migrants themselves beyond the scope of the smuggling protocol.
When commentators highlight the diminishing involvement of organised crime in human trafficking and migrant smuggling, they are, in actuality, demonstrating the drift away from what the UNTOC and its protocols were intended to address. This and the above examples are not proof of a flawed framework, but of our flawed understanding and application of it. This shift in scope must be corrected if we are to guard against international law being weaponised against the wrong people.
Return to roots
The UNTOC and its protocols are called the Palermo Protocols for the city in which they were opened for signature twenty years ago. Palermo, the birthplace of the Sicilian mafia, was not arbitrarily chosen. It was a hat tip to the transnational organised crime the international community was seeking to leverage international law against. We must remind ourselves of and reclaim this legacy.
Questions will still emerge, of course, about the meaning of ‘transnational’ or whether states defining ‘organised criminal group’ more broadly than the UNTOC fall below or exceed minimum standards. But these discussions might spare us from those we are currently having about what human trafficking means alongside exploitative labour, forced labour, and ‘modern slavery’, or whether an NGO worker obtains material benefit when she saves a migrant’s life at sea.
It may be too late to reverse the shift in scope that has taken place. Those looking for political currency against irregular migration are unlikely to heed a clarified legal framework. And for organisations and activists competing for funds, the language of ‘human trafficking’ is too powerful a rallying cry to give up easily.
But if we care about the letter and spirit of international law, are serious about avoiding duplication of effort, and genuinely want to allocate resources effectively in the crowded counter-trafficking and counter-smuggling space, then we need to start talking about article 4.
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Marika McAdam | Radio Free (2020-02-26T07:00:06+00:00) There's no human trafficking or migrant smuggling without organised crime, the law says – and that matters. Retrieved from https://www.radiofree.org/2020/02/26/theres-no-human-trafficking-or-migrant-smuggling-without-organised-crime-the-law-says-and-that-matters/
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