GROUP 2
THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE TO TACKLE
THE SMUGGLING OF MIGRANTS
Chairperson

Mr. Ju-you Man(China)Co-Chairperson

Mr. Pattanachai Yodpayung(Thailand)

Rapporteur

Ms. Narcisa Guevarra(Philippines)

Co-Rapporteur

Mr. Takeo Shiohara(Japan)Co-Rapporteur

Mr. Dzainal Syarief(Indonesia)

Members

Mr. Kiran Paudel(Nepal)Mr. Shinji Miyamoto(Japan)Mr. Kunio Morita(Japan)Prof. Yuichiro Tachi(UNAFEI)

Prof. Sue Takasu(UNAFEI)

Prof. Kei Someda(UNAFEI)

Advisers

I. INTRODUCTION
The 122nd International Training Course on Crime Prevention and the Treatment of Offenders withthe theme ‘The Effective Administration of Criminal Justice on Trafficking in Human Beings andSmugglings of Migrants’ aims to bring into the foreground the current global situation on humantrafficking and smuggling of migrants - their causes, magnitude, impact, as well as the problems
involved in the detection, investigation and prosecution of offenses relative thereto. It also aims to
explore and develop effective ways to tackle this problem based on the experiences and policy systems ofthe countries affected by this global phenomenon. Our group was composed of participants from China,
Indonesia, Japan, Nepal, the Philippines and Thailand and has been assigned to analyze the causes ofhuman smuggling, the modus operandi being used in its commission, the involvement of criminalgroups in its execution, and the problems as mentioned earlier. We also discussed the existing
countermeasures used to combat human smuggling in any form.
In analyzing the profile of human smuggling, our discussions were focused on concerns andchallenges facing the participating countries. It is interesting to note that despite differences incultural, economic and social backgrounds, common objectives such as combating human smuggling
bond these countries together - to learn from each other and to develop a high sense of commitment forinternational cooperation.
II. CURRENT SITUATION ON HUMAN SMUGGLING
A. International Migration
According to the International Organization for Migration1 (IOM), about 160 million people were
living outside their country of birth in year 2000. This number is continuously growing every year.
While more than half (55%) of the international migrants remain in the same geographical region as
their country of origin, about 45% are absorbed by a small number of developed countries. Menconstitute 52.5% of the total international migrants, women being 47.5%. Asia has the largest numberof international migrants followed by European and North American regions.
B. Illegal Migration and Human Smuggling
Legal migration when difficult to undertake induces people to seek alternative methods, usually
illegal ones. When illegal migration is resorted to, it becomes a fertile ground for certain crimes such as
1

Farooq Azam(2002), Chief of Mission/Regional Representative International Organization for Migration Bangkok, The Global
Challenge of Human Trafficking and Smuggling, The 122nd International Training course of UNAFEI

167

RESOURCE MATERIAL SERIES No. 62
human smuggling. Stated differently, human smuggling breeds illegal migration when methods usedby smugglers become highly organized that detection is nearly impossible.
In the 1999 IOM report, China, the Philippines, Indonesia and Myanmar are listed as the top four
countries with the largest number of illegal migrants in the world.
It is believed that illegal migration continues unabated because of the existence of organizedcriminal groups assisting the illegal movement of people. Existing literature shows that hundreds ofthousands of people are smuggled every year, 50% of them being assisted by organized crime groups2.
C. Economics of Human Smuggling
Human smuggling is a lucrative business that generates about US$ 7 billion annually in profits fororganized crime groups. The profitability of this illegal activity is attributed to the lower risk ofdetection, prosecution, and arrest attached to it and the great demand for smuggling services.
On the other hand, smuggled persons face a high risk of economic difficulty. Most of them even sellor mortgage their properties to pay the smuggling fees ranging from US$ 10,000 - 30,000. Aside frombeing ineligible for welfare, medical benefits or other government services, they are also vulnerable toeconomic abuse from employers who often take advantage of their illegal status by giving them lower
salaries.
On the part of the receiving country, smuggled persons are seen as a threat to jobs, a drain on overburdened social services and a threat to cultural traditions. One government has complained, “There isa limit to how many newcomers can be absorbed, and the rate at which they can be assimilated into theexisting system”.
D. Smuggling Routes
People being smuggled go to great lengths to conceal their route and the individuals ororganizations responsible for their travel. Generally, the route used by human smugglers varies fromcountry to country depending on the geographical proximity between the sending country and thereceiving country. The existence or non-existence of effective countermeasures necessary for thedetection of irregular migration likewise determines the smuggling route.
For the purposes of this Group Report, discussions about smuggling routes were focused on theeleven (11) participating countries and their category in order to draw a closer look at the problem.
China is a sending, a receiving, and a transit country of illegal migrants. Many Chinese sneak out of
the borders mostly with the assistance of smugglers into Japan, South Korea, Thailand, Singapore,
U.S.A, The United Kingdom, Italy and France. Conversely, it receives illegal migrants from Pakistan,
North Korea, Bangladesh, Sri Lanka, Mongolia, and Russia. Similarly, it is being used as a transit
point by illegal migrants from neighboring countries seeking illegal entry to other countries in the Asia
Pacific region.
Thailand is a receiving, a sending and a transit country. As a receiving country, it is a destination
for illegal migrants from Myanmar, Cambodia, Laos, China, India, Pakistan and Nepal whose number
is estimated at around 1,000,000 - 1,200,000. As a sending country, Thailand has emerged as one of the
top sources of migrants looking for a better life in countries like Japan, Singapore, Brunei, Australia
and U.S.A. And as a transit country, it receives migrants from China, India, Pakistan and Nepal boundfor Europe, America, Australia, New Zealand and Malaysia.
Malaysia is both a receiving and a transit country. As a receiving country, it is estimated that
800,000 to 1,000,000 illegal migrants mainly from Indonesia and the Philippines are living there. As atransit country, its porous borders permit the entry of illegal migrants from other Asian countries who
are destined for Australia, Singapore and Saudi Arabia.

2

Commission on Filipinos Overseas

168

122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Japan is a receiving country only. Since the time of the “bubble economy”, a lot of people from China,
the Philippines, Thailand, Pakistan, South Korea and Bangladesh have entered illegally in Japan. It isbelieved that the influx of these illegal migrants would not have been possible without the assistance oforganized crime groups such as “Snake Heads” and Japanese gangsters, among others. Due to theburst of the bubble economy, the total number of deported migrants has decreased. On the other hand,though the number of the collective stowaways once fell in the latter half of 1999, it has begun toincrease again in the latter half of 2000.
Cote d’Ivoire is only a receiving country of illegal migrants from Burkina Faso, Mali, Liberia, Togo,
Benin and Guinea. Porous land borders and economic disparity made it possible for illegal migration to
thrive in this tiny but economically developed country of Cote d’Ivoire.
The Philippines is mainly a sending country. The top ten countries of destination of undocumented
Filipinos are the United States, Singapore, Canada, Japan, Italy, the United Kingdom, Saudi Arabia,
Greece, Germany and France.
Laos is mainly a sending country like the Philippines. The presence of a common border and therelative proximity between Laos and Thailand make the latter accessible even to common Laotians who
travel on feet, by car, or by small boat.
Among the participating countries, Egypt and Indonesia are the transit points of migrants boundfor another country. People from Sudan, Nigeria and Kenya are using Egypt to go to various parts ofEurope. In the same way, people from various Asian countries use Indonesia to go to Australia,
Singapore, Malaysia and Arab countries.
Moreover, it is worth mentioning that Nepal has rare cases of human smuggling, while Egypt andVenezuela seem not to have any problem with human smuggling at all although some literature
indicates the likelihood of the existence of this illegal activity in these two countries in view of theeffects of globalization and the covert nature of smuggling operations.
Finally, it is still indubitable that highly developed countries remain the most favorite destinationsof illegal migrants. U.S.A, Italy, United Kingdom, France, Canada, and Australia, top the list.
E. Causes of Human Smuggling
Despite vigorous efforts of every country to control illegal entry of migrants, the number of people
illegally moving from one country to another in search of the proverbial “greener pasture” increases
every year. Several factors, which have been identified by all the participants, are classified into pushand pull factors.
Push Factors:

Pull Factors:- Poverty- Lack of job opportunity- Disappearance of traditional livelihood- Lack of education- Low status of women- Break down in traditional family and support
system- Abundance of smugglers or go-betweens- Alleged success stories or exaggerated accountsof those who migrated- Civil unrest- Internal armed conflict- Natural disasters- Higher salaries- Better job opportunity- Modern society- Porous borders- Existence of organized means of migration- Existence of ethnic groups

169

RESOURCE MATERIAL SERIES No. 62
III. MODUS OPERANDI
A. Modus Operandi
The modus operandi used by organized criminal groups varies depending on the migration systemand control of a country. The tighter and more restrictive the system, the more sophisticated orcomplex the modus operandi may become. From the point of view of the participating countries themodus operandi may be classified into two categories: (1) by deceiving immigration officers (2) byavoiding immigration checkpoints.
1. By Deceiving Immigration Officers
Illegal migrants employ deception techniques upon immigration officers to obtain entry to one
country by air, by land, or by sea, and in an attempt to acquire status of residence. The means used,especially in the case of travel by air, are as follows:(i) Use of forged documents(ii) Misrepresentation of identity(iii)Abuse of tourist or any other legal visas(iv) Use of stolen passports and blank visas
Forgery of travel documents is the most commonly used modus operandi all over the world. The
main methods of forgery are photo-substitution, bio-date-page substitution and date-page alteration.
The use of these methods requires more sophisticated ways to avoid suspicion of irregularity of
documents from immigration officers.
Abuse of tourist or any other legal visas is difficult to establish, as the immigration authority may
not know at once the real purpose of entry because the passports and visas appear to be legal although
the intended use may be different. In Indonesia for instance, illegal migrants are disguised asentertainers, fiances, students or businessmen. In the Philippines, obtaining an entertainment visa isthe most common method.
2. By Avoiding Immigration Checkpoints(i) Transportation by sea or river
Vessels carrying illegal migrants avoid seaports and use coastlines to conceal their embarkation invarious places within a country. The size and structure of ships vary depending on the methods oftransportation. Some illegal migrants are hidden in a locked container or transported using
structurally designed ships. Others are carried by large ships and eventually transferred to small
rubber boats on the high seas. Smugglers use these methods to transport illegal migrants from China
to Japan, and from the Philippines and Indonesia to Malaysia. In Laos however, illegal migrants neednot cross the sea to enter Thailand. They cross the Mekong River separating the two countries bymeans of small boats.
(ii) Transportation by land
For countries with shared land borders, it is not easy to prevent the influx and efflux of illegal
migrants. Illegal migrants can easily come to the destination country by crossing the border on foot orby car. Border crossing is widely used by illegal migrants from Myanmar, Cambodia and Laos toThailand, from Thailand to Malaysia, from North Korea, Laos, Russia, etc. to China. Several organizedcriminal groups are reportedly behind this illegal activity.
B. Involvement of Criminals or Organized Criminal Groups in Smuggling.
Human smugglers are said to be behind the illegal movement of people either through theimmigration checkpoints or through the borders or seacoasts. For example, in Japan, human smugglersthat include, among others, “Snake Heads” use sophisticated modus operandi to carry out theiroperations. Their functions can be divided into three parts: “Inviting Snake Heads” as recruiter,“Carrying Snake Heads” as transporter, and “Receiving Snake Heads” as receiver. Lately, local
gangsters are collaborating with “Snake Heads” by acting as receivers of illegal migrants on the highseas. Even though the authorities concerned can catch the tail of such a group, they cannot go after the“head” either because the captured offender does not confess to anything or the smuggling trail is so170

122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
complex that finding the lead is almost impossible. Law enforcers may be aware of the existence of
these groups but they may not possibly know the whole picture of the smuggling operations.
Changing methods or improving technology of people smuggling as a response to legislative and law
enforcement activities is the principal reason why these criminal networks survive. Alarmingly,
organized criminal groups are now showing an increasing sophistication in the hope of moving a larger
number of people at higher profits.
IV. PROBLEMS OF DETECTION, INVESTIGATION, PROSECUTION AND PUNISHMENT OF
THE CRIME OF HUMAN SMUGGLING
A. Problems of Detection of Smuggled Migrants
1. Problems of Detection of Illegal Migrants at the Immigration Checkpoints(i) Lack of equipment to detect forged documents.
Some countries do not use high-tech equipment, such as scanners,
due to budgetary constraints since the delivery of basic services
is still their top priority.
(ii) Lack of security features of documents such as passports or visas.
(iii)Lack of information exchange between the sending country and the receiving country on thechanges made in their passports, visas and other immigration requirements.
Some countries still consider this information as confidential and national security matters.
(iv) Increasing mobility and sophistication of smugglers. The organized criminals groups are usually“one step ahead of the government” and they tend to change the modus operandi as quickly as
the governments take countermeasures to eliminate them.
2. Problems of the Detection of Smuggling of Migrants by Crossing the Borders(i) Lack of manpower for guarding or patrolling the borders and coastlines. Some countries havenot enough people to man their borders and coastlines for financials reasons.
(ii) Porous borders or the presence of numerous entry points. Some countries have very longcoastlines such as Japan, the Philippines, Indonesia and Malaysia and still others share landborders. Thus, it is impossible to guard or patrol the entire coastlines and borders.
(iii)Lack of hi-tech facilities such as infrared noctovision equipment.
B. Problems of Investigation and Prosecution of the Crime of Human Smuggling
Unlike the international criminal community, our law enforcers and prosecutors observe both thegeographical and jurisdictional boundaries set by the countries in the conduct of their investigations orprosecutions of crimes. The following are some problems relative thereto:(i) Sophisticated means of smuggling make it very hard for investigators and prosecutors to unfold
the identity of the offenders.
The use of pyramid structures of hierarchy and the creation of “criminal cells or networks” invarious countries, each with specific functions, make the “brain of the organization” almost
invisible.
(ii) Lack of effective system of information exchange among various agencies involved in countering
human smuggling.
Some cases of human smuggling are not effectively investigated or prosecuted because theinformation gathered by various agencies involved in addressing this problem are not wellcoordinated.
(iii)Lack of cooperation from the illegal immigrants.
This problem occurs because of the following conditions:

171

RESOURCE MATERIAL SERIES No. 62(a) Illegal migrants are aware that their entry to one country is illegal and therefore punishable
under its immigration laws. Hence, they will not likely to come out in the open and giveinformation on how they were smuggled for fear of prosecution.
(b) Some smuggled migrants even if they are already being exploited are unlikely to call the police
for fear of revenge from the smugglers.
(c) Some smuggled migrants do not trust the police for fear of physical harm the latter might inflictagainst them.
(iv) Lack of an efficient information exchange system of both the sending and the receiving countries
that will facilitate the sharing of vital information on the criminal records or dossiers oforganized criminal groups.
Limits may be placed on the intelligence that countries are willing to share.
(v) Lack of evidence, real or oral testimony.
As for human smuggling cases, the planning, conspiracy, preparation, recruitment, procuring ofcommission fees, transportation of migrants, illegal entry to another country, receiving migrants
and other criminal acts are normally committed over several countries. Evidence of humansmuggling cases inevitably lies in many countries. It causes difficulties for criminal justiceofficials to gather evidence expeditiously and effectively over several different criminal
jurisdictions. Moreover, evidence gathered overseas might have some problems of admissibility
and/or credibility at trial in some countries. Thus, the investigations and prosecutions of humansmuggling cases face serious problems in gathering evidence.
(vi) Existing laws against human smuggling are inadequate as they are still more focused on the
migrant than on the smugglers.
(vii)Lack of a sense of urgency on the part of law enforcers to dig deeper into smuggling cases.
This may be due to the fact that they are more concerned about solving crimes politicallyconsidered as more serious and pressing such as murder, kidnapping, terrorism, drugtrafficking, etc.
(viii)Lack of technical knowledge on how to use the international cooperation tools such as informal
or formal mutual legal assistance.
(ix) Absence or lack of systematic criminal procedures for taking testimony expeditiously.
In the Japanese criminal justice system, a judge may examine a witness even before the firsttrial date in order to secure the essential testimony. So a court can obtain a testimony from awitness who is a smuggled migrant and is scheduled to be deported to his/her country of origin
in order to prosecute the smugglers. However, most of the developing countries do notincorporate such a system in their criminal justice procedure.
(x) Limited language proficiency of the investigators in the course of the investigation of smuggled
migrants.
This becomes a problem because some smuggled migrants do not speak major languages.
(xi) Difficulty in acquiring jurisdiction over the offender, accomplices, and witnesses, due to thetransnational nature of crime.
(xii)Lack of judges and prosecutors and clogged dockets.
In the Philippines, 45% of courts have no judges and 25% of prosecutorial positions are stillvacant because there were no takers. Low salaries and heavy tasks involved in prosecution andtrial are said to be the reasons for the vacancies. Venezuela and Laos also have these problems.
C. Problems with the Punishment of the Crime of Human Smuggling(i) Low penalty for illegal migrants
Some countries raise concerns about the low penalty for illegal migrants. However, we were notable to reach an agreement that heavier punishments of illegal migrants would solve the issueof smuggling. We consider it possible that educative measures for illegal migrants can stem thetide, despite the fact that smuggling may leverage on low penalty for illegal migrants.
(ii) Existing laws against human smuggling are inadequate as they are still more focused on the
migrant than on the smugglers.
D. Problems of Corruption
Corruption is a disruptive factor in the implementation of immigration policies. While it is deeply
connected with the economic, social and cultural environment of a country, major causes are as follows:172

122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(i) Opportunities, which depend on the extent of civil servants’ involvement in the administrationof the agency.
(ii) Salaries, as poorly paid civil servants succumb more easily to petty corruption.
(iii)Policing, i.e., the probability of detection and punishment. How likely will a corrupt official becaught and punished for being corrupt?
VI. COUNTERMEASURES
A. Countermeasures against the Problem of Detection
1. At Immigration Checkpoints(i) Improvement of technology for travel documents
Various countries now have improved the quality of passports and visas to prevent forgery or
falsification. Microform marks are used in China, Cote d’Ivoire, Egypt, Thailand and Japan.
Rainbow printing is used in China, Cote d’Ivoire, Egypt, Laos, the Philippines and Thailand.
Laser printing is used in China, Cote d’Ivoire, Egypt, Philippines, Thailand and Japan. Intaglio
printing is used in China, Egypt, Indonesia, the Philippines and Japan.
Just recently, the United States of America announced that it will soon implement a visa card
system where fingerprints, handprints and other physical identification marks are used toprotect the integrity of the system.
(ii) Training for Immigration Officers/Inspectors
Participating countries conduct regular training for their immigration inspectors to improvetheir knowledge and inspecting skills. (e.g. how to identify fraudulent documents).
(iii)Movement Alert Lists
Some countries, mostly developed ones, (e.g. Australia) have developed a computer databasethat stores details about people and travel documents of immigration concern. The “movement
alert lists” enable immigration officers to track down the people going in and out of theirjurisdiction and analyze this information in making decisions.
2. Against Border Crossing(i) Strict patrol of the borders and coastlines. Strict patrol of the borders and coastlines is aneffective way to crack down on human smuggling.
(ii) Use of hotlines to report suspicious arrival of smuggled people. It is very difficult to combat
human smuggling without the participation of the local community especially in areas where
human smuggling is known to exist. Encouraging them to report to the police about any
suspicious movements of foreigners in their area will help law enforcers in making thesurveillance. For this purpose, hotlines maybe provided by the government to facilitate thedispatch of vital information on these matters.
B. Countermeasures against the Problem of Investigation, Prosecution and Punishment of
the Crime of Human Smuggling
1. Imposition of Penalties
Almost all countries have immigration and other laws to punish illegal migration. These serve as adeterrent against illegal migrants seeking entry into a country. In the case of the organized criminalgroups, there is yet a special law to be enacted to specifically deal with them, although their criminal
acts may be punished under several domestic laws such as the immigration law, the penal law and soforth. Accomplices who transport illegal migrants and those who harbor them are also criminallyliable.
C. General Countermeasures
1. Establishment of Information Exchange Among Government Agencies
Some countries have developed an information exchange system that serves as a link between andamong the agencies concerned with human smuggling or illegal migration. This is useful to facilitate
receipt and transfer of information regarding the movement of people into and outside of their territory.
For instance, in China, they have a special unit composed of representatives from several departments

173

RESOURCE MATERIAL SERIES No. 62
such as from the airline companies, customs, quarantine, and public security to ensure that people
coming in and out of the country have valid travel documents. In the Philippines, there is a “Shared
Government Information System” that stores information on a database on the movement of Filipinos.
It also has an agency with a database on transnational organized crimes such as terrorism, humantrafficking and smuggling, drug trafficking, etc. The organization is called the Philippine Center forTransnational Organized Crimes.
2. Enlistment of Non-government Organizations in the Combat against Human Smuggling
In some countries like the Philippines, Thailand and the Nepal, non-government organizations areactively participating and cooperating with the respective governments in their fight against all formsof exploitation including human smuggling. Most victims of organized criminal groups prefer to avail
the services of the NGOs than those of the government. They trust NGOs more than the government
authorities, especially the police.
3. International Cooperation
Most of the countries are signatories to several UN Conventions and Protocols relative to smugglingof migrants. Aside from this, some of them have other bilateral or multilateral agreements. For
instance, the Philippines, Malaysia and Indonesia have the so-called “Trilateral Agreement on
Information Exchange and Establishment of Communication Procedures”. The Japanese Coast
Guards and the Ministry of Public Security of China have an agreement to exchange information about
illegal migrants. The Japanese Coast Guard also collaborates with the Japan National Police Agency to
discover suspicious boats. These three agencies have established an information exchange network andhold meetings to discuss certain issues relating to smuggling. Presently, coastguard authorities of bothcountries are conducting a strict patrol around their seacoasts.
It must be pointed out that informal and formal mutual legal assistance is also available to help in
the prosecution of criminal cases. However, some countries do not have an extradition treaty, or formal
mutual legal assistance. In such a case, the informal one may be helpful.
4. Enhancing the Awareness of the People
Some countries, such as the Philippines, China, Indonesia and Nepal use mass media and/or nongovernment organizations to educate their people about the ill-effects of human smuggling.
VII. IMMIGRATION POLICY
Immigration policy means the general principles of immigration by which a government is guided inits management of its public affairs, specifically of immigration concerns. It is impressed with politicalinterest of a State on matters of who may or may not enter its territory or jurisdiction. For instance,some countries utilize immigration policy for a specific purpose either political as to influence election
results or economic, in terms of human investment.
According to some sources, an immigration policy may be classified into a discourage policy or an
encourage policy. A discourage policy is said to be unfavorable to the migrants while an encourage
policy is quite liberal and tends to welcome the entry of migrants.
In Japan, there was an amendment of the Immigration Control and Refugee Recognition Act inDecember 1989. According to article 73-2, a person is liable for criminal responsibility for thefollowings acts:a) Engaging an alien in illegal work in relation to business activities.
b) Placing an alien under his control for the purpose of having the alien engage in illegal work.
c) Repeatedly mediating either the procurement of an alien to engege in illegal work or the act
specified in the preceeding item.
And there is also an amendment of the Immigration Control and Refugee recognition Act 1999 tocriminalize an illegal stay after illegal entry. The provision came into force on 18 February 2000. In
term of smuggling, for Japan, their immigration policy is characterized by these acts.

174

122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEThe United States of America gave permanent residence status to 1,064,318 persons in the year
2000 under Title 18 of the United States Code Section 1181 (a) (b) (c). For this act, we might assume
that The United States of America utilizes an encourage immigration policy. However, the UnitedStates of America also has a specific law against smuggled migrants, specifically under Section 1324 (a)Title 18 United States Code. And the United States of America also works hard to suppress the entry of
smuggled migrants at the border by conducting strict border control of land and seacoasts. ThusÅCto
assume the immigration policy of the United States of America is an encourage policy might lead to amisunderstanding of the issues. In this case, it is also easy to categorize the immigration policy of theUnited States of America.
VIII. LEGISLATIVE ISSUES
A. Criminalization of Smuggling of Migrants
The Protocol against the Smugglings of Migrants by Land, Sea and Air, supplementing the United
Nations Convention against Transnational Organized Crime, aims to prevent illegal migrants andpunish their procurers. The criminalization of smuggling acts under article 6 of the protocol can bedivided into 4 parts as follows:
1. Criminalization of the Following Acts of Smuggling of Migrants(i) producing, procuring, providing or processing a fraudulent travel or identity document for the
purpose of smugglings of migrants(ii) enabling a person to remain illegally in the state.
2. Measures to Reinforce the Criminalization of the Acts Mentioned in (1) above
such as:(i) attempting to commit the acts(ii) participating as an accomplice(iii)organizing or directing other persons to commit the offenses mentioned in (1) above.
3. Providing for Aggravating Circumstances.(see page 22)
4. Recognition of Domestic Law
The protocol recognizes the right of every country to punish illegal migrants and smugglers under
its domestic law.
B. Domestic law
The protocol recommends each state party to adopt such legislative measures, as a general principle
but, in reality, the adoption of such measures is not an easy task. It may be noted that some countries
have existing legislation on the matter, although it may be partly in conformity with the Protocol. Thislegislation may be classified into two types: specific provisions of law and non-specific provisions of law:
1. Specific Provisions of Law
The following countries have specific provisions of law against human smuggling:
In China, the Standing Committee of the National People’s Congress adopted the “Complementary
Regulation on Stringent Punishment Against the Crimes of Organizing and Escorting Others Acrossthe State and Regional Borders” in March 1994. In October 1997, penal sanctions for organizers, escorts
and illegal immigrants were specified in the Criminal Law of the People’s Republic of China.
In Malaysia, its Immigration Act provides that the act of smuggling migrants, producing fraudulent
travel or identity documents or an attempt to commit the said acts and the act of organizing or directing
other persons to commit the same acts are punishable.
In Japan, any person who has transported collective stowaways or has prepared vessels for criminal
use or has received illegal migrants is criminally liable pursuant to the “Immigration Control andRefugee Recognition Act”.

175

RESOURCE MATERIAL SERIES No. 62
In the Philippines, Section 46 of the Philippine Immigration Act of 1940 provides that “Anyindividual who shall bring into or land in the Philippines or conceal, harbor, employ, or give comfort toany alien not duly admitted by any immigration office or not lawfully entitled to enter or reside within
the Philippines under the terms of the immigration laws, or attempts, conspires with, or aids another tocommit any such act, and any alien who enters the Philippines without inspection and admission by theimmigration officials, or obtains entry into the Philippines by willful, false, or misleading
misrepresentations or willful concealment of a material fact, shall be guilty of an offense”. Moreover,the said law provides that the fines imposed on smugglers or procurers of illegal migrants shallconstitute a lien against the vessel or aircraft, provided that, the court has discretion to order theforfeiture of the vessel or aircraft. It provides for the punishment of the pilot, master, agent, owner, andconsignee in charge of the vessel or aircraft.
Under Section 1324(a) Title 18 of the United States Code (USA), the law provides that it shall be
unlawful for any person to bring an alien into or attempts to bring or transport or move or attempt tomove or transport an alien into the United States other than through a designated port of entry
regardless of whether such alien has been authorized to enter or not or to conceal, harbor, shield or
attempt to shield such alien in any place from detection or encourage or induce an alien to come orenter in the United States, or engage or aid or abet in any conspiracy to commit any of the proceedings
acts. Likewise, any person who, during the 12-month period, hired aliens consisting of 10 persons for
employment shall be criminally liable.
Likewise, Section 1324 (b) of the same Code provides for the forfeiture of criminal assets including
vessels, vehicles or aircraft used in the commission of the crime.
It is safe to assume that the above-mentioned countries have specific laws directly dealing with thecrime of human smuggling in accordance with the Protocol.
2. Non-specific Provisions of Law
There are some countries that have no specific law on the subject. Instead, they use other domestic
laws that may be applicable under the circumstances. These domestic laws consist of the Penal Code,the Immigration Act and other special laws on migration. For instance, the provisions in the Penal Codeof some countries refer to the act of forgery or producing fraudulent documents.
Moreover, the general principles of criminal law as provided in the Penal Code of some countries
concerning the criminal liability of the principals, accessories and accomplices, the stages of thecommission of the crime (attempted, frustrated and consummated) and the presence of the aggravating
circumstances , as mentioned in the Protocol article 6(3), such as endangering the lives or safety of thesmuggled persons or placing them in inhumane or degrading conditions are also being applied.
The countries using the provisions of their Penal Code are Cote d’Ivoire, Laos, Nepal, Thailand,
Japan and the Philippines.
C. Treatment of the Smuggled Migrants
1. Present Status of Migrants
According to article 5 on criminal liability of migrants of the Protocol, it states that “except asotherwise stated herein, migrants shall not become liable to criminal prosecution for the fact of having
been the object of conduct set forth in article 6 of this Protocol”.
Some countries argue that smuggled migrants are considered victims when exploited by thesmugglers. Still, others believe that these illegal migrants are offenders regardless of whether they are
exploited or not. Except for some socialist countries, most sending countries do not treat them as
offenders except when they have used forged passports and visas.
An analysis of the existing legislation on immigration indicates that there is no distinction between
smuggled migrants and illegal migrants. Thus, Indonesia, Cote d’Ivoire, Egypt, Malaysia, thePhilippines, Thailand and Japan can punish illegal migrants whether smuggled or not for violating

176

122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
their respective immigration laws. Nepal and Venezuela have no law on the matter. The legislation
seems to indicate that smuggled migrants are not considered as victims but offenders.
D. Repatriation and Protection of Smuggled Migrants
1. Protection Before Repatriation (In the Receiving Country)
Article 16 of the Protocol provides that ratifying states shall take steps, consistent with their
obligation under international law, including legislation if necessary, to preserve and protect the rightsof persons who have been “the object of smuggling”. More specifically, illegal migrants have the right tolife and the right not to be subjected to torture or other cruel, inhumane or degrading treatment or
punishment. Concerned authorities should also protect migrants from violence by smugglers and take
into account the special needs of women and children in implementing these measures, especiallyduring their detention. All participating countries (except for countries which have no data available)
adopt the measure to punish illegal migrants for violation of immigration and other laws, and to deportthem to their country of origin. Of these countries, Malaysia, Philippines and Thailand adopt from time
to time, measures to legalize illegal migrants.
Additionally, in Thailand, the Thai government allows employers to register and hire their
Myanmar, Laos and Cambodian illegal employees. And illegal migrants can get special permission towork for two years as long as they live and work in a specific area in Thailand. However, compared withthe total number of illegal workers, only one-tenth is registered.
Malaysia granted amnesty to legalize illegal migrants’ stay in the country a few years ago.
2. Repatriation to the Sending Country or Country of Origin
According to Article 18-3 of the Protocol, a ratifying state shall verify whether a person who has
been an object of smuggling is its national or has the right of permanent residence in its territory. The
ratifying state of which an illegal migrant is a national or in which he/she has the right of permanent
residence shall agree to issue such travel documents or other authorization to enable illegal migrants toreturn to the country of origin.
3. Protection After Repatriation (In the Country of Origin)
In some cases, smuggled persons who have been deported to their country of origin may seek to be
smuggled again. Each country needs to fight the causes of smuggling and protect these persons frombeing smuggled again through education and so on.
The Participating countries have different ways of treating their smuggled nationals. For instance,
China may give some financial support in certain cases to its nationals who are objects of smuggling. It
also gives legal counseling to its repatriated nationals.
IX. RECOMMENDATIONS
The following are the recommendations of the Group:
A. On the Problems of Detection, Investigation, Prosecution and Punishment of the Crimeof Human Smuggling
1. Promotion of High Technology for Passports or Visas to Prevent Forgery of Documents
2. Develop or Promote the Use of Advanced Technology for the Detection of Forged Documents
3. Strengthening of International Cooperation and Exchange of Information Between and Among
Countries
All countries must be encouraged to form bilateral agreements, especially between the sending andthe receiving country on information exchange, extradition and mutual legal assistance.

177

RESOURCE MATERIAL SERIES No. 62
4. Improving Coastguard, Customs and Navy Capabilities and Tightening of Border Control
There is also a need to improve coastguard, customs and navy capabilities to detect, pursue,intercept and search boats carrying unauthorized arrivals. Special training, both local and overseas
may be provided to the officers concerned. For countries with shared land borders, it is necessary toadopt measures that will effectively control the entry and exit of people.
5. Creation of Special Task Forces against Human Smuggling
The creation of special task forces, which should function as a records information center andfacilitate an exchange of information. They should also be staffed by experts in all the relevant fields.
This will also address the problem of sectionalism because members of the task forces will be comingfrom the agencies involved in the detection, investigation and prosecution of human smuggling cases.
6. Develop a System for Peoples’ Participation in the Combat against Human Smuggling
The use of hotlines to report suspicious arrival of smuggled people especially in hot spot areas
should be encouraged. People living in areas where human smuggling activities are believed to behappening are the very first ones to know about such activities.
7. Conduct Special Training for Investigators, Prosecutors, Judges and Other Concerned Government
Officials
Investigators, prosecutors and other concerned government officials should be properly trained in
how to develop and use the international tools for gathering information and mutual legal assistance.
Countries having a “Speedy Trial Act” (e.g. the Philippines) should fully observe and implement thesame.
8. Strengthening of the System of Information and Exchange between and among the Agencies
Concerned with Human Smuggling
Each country should develop a systematic and effective system of coordination between and among
relevant agencies concerned with immigration, coastguard, police, prosecution service etc.
9. Secure Witnesses (Illegal Migrants) to Punish Smugglers Effectively(i) Before trial
We cannot obtain cooperation from a witness (illegal migrants) if there is a fear of prosecution forbeing the object of smuggling. Of course, if you can decriminalize the present illegal migration, theproblem can be solved. However it is not realistic. As long as the illegal migrants face the possibility of
being prosecuted in our system, we may employ suspension of prosecution. That is, giving discretionary
power to the prosecutors, he/she can decide not to indict the illegal migrants and remove the fear on thepart of illegal migrants in order to get their cooperation.
(ii) At trial
The competent authority may grant special permission to stay for the illegal migrants who will be
witnesses at the trial of the smugglers.
10. Enactment of Legislative Measures against Human Smuggling
Existing legislation on illegal migration are still focused on the migrants and not the smugglers.
There is a need to enact a law that will specifically deal with human smuggling. Such law should
criminalize acts mentioned in Article 6 of the Protocol. Additionally, some provisions may be includedin the Act such as the following:(i) seizure or sale or destruction of their boats and other criminal assets connected with humansmuggling;(ii) vessels in international waters can be boarded and searched if suspected of being involved inhuman smuggling;(iii)criminal liability of crew members of ships and boats;(iv) criminal liability of business establishments employing smuggled migrants;(v) informer’s rewards system (if the country can afford it) ; and(vi) witness protection program (if smuggled migrants receive serious threats from smugglers in thecourse of the investigation or prosecution).

178

122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
11. Intensify the Information and Education Campaigns(i) Dissemination of publicity materials by the receiving countries.
It would be of great help if receiving countries would distribute publicity materials throughout
human smuggling source countries as well as transit countries to warn people of the risks associatedwith trying to enter their countries illegally and the penalties smugglers face. Receiving countries
must send a clear message that they do not tolerate illegal arrivals and must develop a system of
stopping people who have effective protection overseas from gaining onshore protection in theircountries.
(ii) By the government of the sending countries.
The mass media (i.e. radio, television and newspapers) are effective and powerful tools fordisseminating information and educating people about the danger of illegal migration such as:(a) the danger of being detected and prosecuted in the destination country;(b) the danger to their lives and limbs during the transportation of illegal migrants; and(c) the danger of being exploited while in the destination country;
B. Prevention of Human Smuggling by Giving Protection to the Object of Smuggling
1. Moral Support
Every country, whether sending or receiving illegal migrants, should take some measures tofacilitate, without undue or unreasonable delay, the verification of the smuggled person’s identity andto issue travel documents necessary for their return to the country of origin. By doing this, their period
of detention will be shortened and they will be encouraged by this show of moral support.
2. Medical AssistanceEvery State should avoid the use of torture or other cruel, inhumane or degrading treatment andpunishment upon illegal migrants or their family. It shall also provide some medical treatment and carewhen they are suffering from any disease.
3. Financial Support
States should allocate funds for the support of the repatriated illegal migrants and for their reeducation. For this purpose, the government authority and NGOs should collaborate with each other toensure that the repatriated migrants get some livelihood in order to prevent them from being smuggled
again.
C. On the Problem of Corruption
Since corruption is a multi-faceted issue, some practical solutions may be offered to help solve theproblem. Each country should continuously develop anti-corruption strategies and understand thelogic of corruption control.
1. Reducing Opportunities For Corruption
2. Increasing the Costs of Corrupt Behavior
The costs of corrupt behavior can be increased by making it a high-risk, low-reward activity bypunishing the guilty and exposing them to the media
3. Reduce Temptation to be Corrupt by Paying Civil Servants Adequate Salaries
X. CONCLUSION
Globalization has brought the world closer and enabled people to span nations. It has createdorganized criminal groups that prey upon those who easily succumb to the lure of migration brought
about by the interplay of pull and push factors. These criminal groups transcend borders and use thevery same infrastructure and technology that facilitates transportation and communication.
Unfortunately, the existing legislation is still more focused on illegal migrants than on smugglers. But
regardless of whether smuggled migrants are considered offenders or objects of smuggling, they are

179

RESOURCE MATERIAL SERIES No. 62
entitled to human rights and protection from all forms of abuse. It is about time to bring them tojustice. But the responsibility in this area does not rest on one country alone. All countries must work
together with full coordination in the international and domestic spheres.

180