Movement should be safe for migrants, not profitable for smugglers

First published by ISS Today

As legal avenues for migration have shrunk due to Covid-19 related restrictions, movement has increasingly been facilitated by smugglers. Governments need to ensure their responses don’t inadvertently make movement more dangerous for migrants and more profitable for criminals.

Although migration decreased as governments closed borders at the outset of the pandemic, it is expected to resume and grow as borders open.

The United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air (UN Smuggling Protocol) defines human smuggling as enabling the illegal entry of a person into a state for financial or material gain. This distinguishes it from human trafficking, where people are moved against their will or under false pretences for the purposes of exploitation.

Research by the ENACT organised crime programme has shown that most human smugglers in Africa are low-level operators. They often come from the same community as their clients, and their interests are aligned in the safe journey of the migrant. The industry therefore enjoys considerable local legitimacy.

But shrinking opportunities for legal migration and enhanced focus on border control have heightened demand for smugglers, and driven the market to professionalise, putting the lives of vulnerable people at risk. Between 2014 and 2019, 7,500 migrant deaths were recorded in Africa, and Africans counted for a significant portion of the 19,000 migrants who died trying to cross the Mediterranean. These are likely to be significant underestimates.

In line with global trends, African governments tend towards a criminal justice approach and focus on the supply side by targeting smugglers. States would do well to heed lessons from the failed war on drugs, where prohibition built a booming black market and attracted organised crime.

Policies that militarise borders and close down legal routes to migration make people more reliant on smugglers. More legal and safe routes would lessen the risks and harms experienced by migrants, reduce profit for human smugglers and make the industry less attractive to organised crime.

The African Union’s Agenda 2063 vision of open borders is a long way from national political and economic realities, with most states still tightly controlling their frontiers. Only four states have ratified the AU’s Free Movement of Persons Protocol, well short of the 15 countries required to bring it into force.

Forty African states have ratified the UN’s Smuggling Protocol, but far fewer have criminalised migrant smuggling in line with the protocol’s definition, which requires the intent of the smuggler to be material or financial benefit.

Human smuggling offences are typically enacted within immigration laws, the criminal code, trafficking in persons legislation or stand-alone smuggling laws. Incorporating smuggling crimes in immigration laws severs the link between smuggling and organised crime, encouraging criminalisation of the migrant rather than the smuggler.

Ten countries including Ethiopia, Mali, Senegal and Nigeria include smuggling offences in human trafficking legislation. This confuses smuggling with trafficking, encouraging similar penalties. This is not equitable from a harm perspective, as trafficking typically involves far greater exploitation. They are distinct crimes requiring different policy responses.

Some African states, including Egypt, Niger, Guinea-Bissau and Mauritania, have stand-alone smuggling laws, which risks creating parallel legal structures alongside the criminal code. Human smuggling should instead be incorporated into the criminal code – the legislative instrument law enforcement officers are most familiar with. This approach is being taken in Algeria, Central African Republic, Guinea, Mozambique and Namibia.

A number of concerning trends have emerged in the approach taken by African states to the criminalisation of smuggling. First, 16 African states impose mandatory minimum sentencing for human smuggling, ranging from one to 15 years. Yet smuggling is a complex crime where too often the wrong people are targeted. Low-level smugglers and migrants often bear the brunt of punitive policies, while crime bosses and corrupt officials go unpunished. This makes mandatory minimum sentences inappropriate and disproportionate.

High penalties should be reserved for aggravated smuggling offences, where smugglers endanger human lives, or subject migrants to inhuman or degrading treatment. Corrupt officials facilitating human smuggling should also receive harsh sentences.

A second worrying trend in Africa relates to one of the pillars of the Smuggling Protocol which protects migrants. It prohibits the prosecution of migrants merely for using smugglers’ services. Yet most African states exclude this prohibition, risking wrongful criminalisation of the migrant.

Indiscriminate law enforcement responses to smuggling risk driving the market from an informal side business, with low risks and low profit, to a full-time criminal enterprise with profits invested back into the criminal economy.

More enforcement makes it harder to move people, so smugglers need to take more risks on longer and more clandestine routes to avoid detection. The greater the skills required to evade capture, the greater the price for these skills, and human smuggling attracts operators with experience moving other illicit goods.

Greater enforcement prompted a five-fold increase in the price of being smuggled across the desert from Niger to Libya between 2015 and 2019. The human costs are also high – the International Organization for Migration recorded a six-fold increase in desert fatalities on the roads to Algeria between 2015 and 2017.

As enforcement increases, so does the smuggling industry’s reliance on state involvement to evade capture. As smuggling prices grow, so does the market’s power to bribe officials. The smuggled journey thus becomes more expensive and dangerous for migrants, while higher profits make the industry more attractive to organised criminal networks.

To avoid swelling the industry’s profits and fuelling corruption, African governments and destination countries should collaboratively adopt policies that recognise the benefits of migrants to their economies. The focus of counter-smuggling responses should be on networks causing the greatest harm.

This would facilitate labour migration to feed market demand, render the services of smugglers unnecessary, and lessen the exploitative nature of the smuggling industry. DM

Lucia Bird is a Senior Analyst, Global Initiative Against Transnational Organised Crime.