The normative foundations of the criminalization of human smuggling: Exploring the fault lines between European and international law
| Author | Valsamis Mitsilegas |
| DOI | 10.1177/2032284419834363 |
| Date | 01 March 2019 |
| Published date | 01 March 2019 |
| Subject Matter | Special Issue: Articles |
Special Issue: Article
The normative foundations
of the criminalization of human
smuggling: Exploring the
fault lines between European
and international law
Valsamis Mitsilegas
Queen Mary University of London, UK
Abstract
The aim of this article is to examine the different manifestations of the criminalization of human
smuggling and to provide a critique of the normative foundations of such criminalization. A wide
range of conduct has been criminalized as human smuggling in international and European law. This
conduct ranges from organized crime to exploitation and violence to humanitarian assistance to
irregular entry, with recent calls being made for smuggling to be treated as a crime against
humanity. The article will examine the criminalization of human smuggling critically, by providing a
taxonomy of the claimed and real normative foundations for such criminalization. The analysis will
cast light on the ambiguity behind the criminalization of human smuggling and evaluate critically
attempts to adopt a ‘catch-all’ approach to criminalization. The limits of this approach will be
demonstrated, in particular by highlighting the considerable differences in criminalization
approaches at United Nations and at European Union level.
Keywords
Human smuggling, facilitation of unauthorized entry, criminalization of migration, crimmigration,
preventive justice, organized crime, humanitarianism, NGOs, civil society, crimes against humanity,
Palermo convention
Introduction
Recent responses to addressing migration flows towards Europe have centred on criminalizing
and prosecuting human smuggling. However, the normative foundations behind the
Corresponding author:
Valsamis Mitsilegas, Queen Mary University of London, London E1 4NS, UK.
E-mail: v.mitsilegas@qmul.ac.uk
New Journal of European Criminal Law
2019, Vol. 10(1) 68–85
ªThe Author(s) 2019
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DOI: 10.1177/2032284419834363
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criminalization of human smuggling remain unclear. Criminal law on human smuggling has
not developed in a coherent way, with different organizations and dif ferent fora developing
responses which lack coherence and are increasinglyadhocandframedwithinanemergency
logic of the need to tackle migration flows as a security threat. The aim of this article is to
examine the different manifestations of the criminalization of human smuggling and to pro-
vide a critique of the normative foundations of such criminalization. A wide range of conduct
has been criminalized as human smuggling in international and European law. This conduct
ranges from organized crime to exploitation and violence to humanitarian assistance to irre-
gular entry, with recent calls being made for smuggling to be treated as a crime against
humanity. The article will examine the criminalization of human smuggling critically, by
providing a taxonomy of the claimed and real normative foundations for such criminalization.
The analysis will cast light on the ambiguity behind the criminalization of human smuggling
and evaluate critically attempts to adopt a ‘catch-all’ approach to criminalization. The limits
of this approach will be demonstrated, in particular, by highlighting the considerable
differences in criminalization approaches at United Nations (UN) and at European Union
(EU) level.
Countering organized crime: The parameters of the
Palermo convention
In evaluating the criminalization of human smuggling in international law, the starting point must
be the framing of human smuggling offences as organized crime offences. The primary interna-
tional law framework for the criminalization of human smuggling is the 2000 United Nations
Convention on Transnational Organized Crime (the Palermo Convention).
1
A separate Protocol
addresses human smuggling, and its opening provision confirms that the Protocol supplements the
Palermo Convention and must be interpreted together with it.
2
The framing of human smuggling
within an organized crime context is further confirmed by its very definition: According to the
Protocol, smuggling of migrants means 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.
3
Criminalization of smuggling must be based on
intentional conduct with the aim of obtaining a financial or other material benefit.
4
The express
inclusion of the requirement to obtain such a benefit is a clear indication that the drafters of the
Protocol on the one hand viewed smuggling within the framework of organized crime, and on the
other that they wished to exclude from the definition and criminalization of smuggling acts which
did not have a material/financial motive such as humanitarian assistance. According to an Inter-
pretative Note to the Protocol,
the reference to ‘a financial or other material benefit’ was included in order to emphasize that the
intention was to include the activities of organized criminal groups acting for profit, but to exclude the
activities of those who provided support to migrants for humanitarian reasons or on the basis of close
1. The United Nations Convention against Transnational Organized Crime and the Protocols thereto, 15 November 2000.
2. Article 1(1) of the Smuggling Protocol.
3. Article 3(3) of the Smuggling Protocol. Emphasis added.
4. Article 6(1) of the Smuggling Protocol.
Mitsilegas 69
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